
Qass. 
Book- 



HISTORICAL SKETCH 

OP THE 

ffovmmott ot tftt c^mttntvutp^ 

PARTICULARLY WITH REFERENCE 

TO t»lE 

PROVINCIAL LIMITS AND THE JURISDICTION 

OP THE 

GENERAL GOVERNMENT? 

bv£k 

INDIAN TRIBES AND THE PUBLIC TERRltQRif- 



BY JOSEPH BLUNT. 



J^EW'YORK: 1 

PUBLISHED BY GEO. fe CHAS. (CARViM 

C. S. Van Winkle, Printi? ' 

183P. 



Southern District of NeW'York, ss. 

BE IT REMKMBERLD, That on the eight day of December, A. D. 
1825. in thi' fif'ieth ypar of the Independence of the United -fates of Ameri- 
ca, Geo. &. Chas. Carvill, of the said liistricl, have deposited in this office 
the title of a book, the right whereof they claim as proprietors, in 'he words 
foUowin.T, to wit : 

" A Historical Sketch of the formation of the confederacy, particularly 
with reference to the provincial limits and the jurisdiction of the Generjil 
Government, over Indian Tribes and the public territory. By Joseph 
Blunt." 

In conformity to the act of Congress of the United States, entitled, " An 
act for the encouragement of learning, by securing; the copies of maps, 
charts, and books, to the authors and proprietors ol such copies, during the 
time therein raentit)ned ,"and also to an act, enliil' cl, " An act supplemen- 
tary to an act, entitled, an act for the encouragemnnt of learning, by secu- 
ring the copies of maps, charts, atid books, to the authors and proprietors 
of snch copies, during the times therein mentioned, and extending the 
benefits thereof to the arts of designing, engraving, and etching historical 
and other print^." 

JAMES DILL, 
Clerk of the Southern District of Mew- York. 



TO THE 



HON. STEPHEN VAN RENSSELAER. 



DEAR SIR, 

The examination of the subject of the following 
remarks was suggested by the discussions, which 
grew out of the controversy between the state of 
Georgia and the general government. The extra- 
ordinary positions assumed by the executive of that 
state, and his vehement invectives at the violation of 
its sovereignty, were well calculated to attract public 
attention, and to induce inquiry into the justice of 
his complaints. 

In governments of limited powers, as this confess- 
edly is, a grave charge by the chief magistrate of a 
state, of an,infringement of the federal constitution, is 
well worthy of serious consideration. It necessarily 
implies the existence of one of the prominent dan- 
gers, to which this republic is exposed : A design to 
usurp power on the part of the national government ; 
or a factious disposition in the state authorities : 
consolidation and despotism on one side ; disunion 
and anarchy on the other. 

In this imperfect volume, I venture to present to 
the public the result of my examination into the chief 
topics connected with that controversy. If it be cor- 
rect, it not only vindicates the federal government 
from all charge of undue ambition, but shows that in 



its desire to conciliate the good will of the state dti- 
thorities, it lias conceded more than thej could have 
reasonably demanded. 

A curious coincidence too, will be found in the 
circumstances of those states, whose political leaders 
have been loudest in their complaints at the supposed 
infringement of their privileges, which may contri- 
bute to enlighten the public mind as to the motive of 
their discontent. The vehemence of their zeal in 
behalf of state rights, seems to have depended upon 
the magnitude of rheir territorial claims ; and to have 
borne an exact proportion to the reluctance felt to 
yielding those claims to the just demands of the con- 
federacy. Whether this zeal for those peculiar doc- 
trines, is not merely a wish for individual, or local 
aggrandizement, at the expence of the general wel- 
fare ; how far unfounded complaints may tend to 
bring the real rights of the states iiito disrepute ; what 
effect these domestic wranglings may have upon the 
national character, and in detracting from the moral 
force of our institutions : are questions well worthy 
the consideration of all men intrusted with the direc- 
tion of public affairs. 

The opinions here expressed may not be in exact 
unison with your own ; but as one of the represen- 
tatives of a state which was foremost in removing 
the obstacles to the American union, and not behind 
any in a confiding and ardent attachment to the 
general government ; I beg leave to inscribe this 
volume to you, as a testimony of my sincere respect 
for your private worth, and the disinterested spirit by 
which you have been actuated in your public ca- 
reer. 

I am, sir, with great respect, 

Your obedient servant, 

J. BLUNT. 



CHAPTER I. 



Foundation of the European claims to America.-— Papal 
Grants, — Actual Possession,-^First Discovert/. 



The manner in which the European powers occupied 
the American continent, and the principles upon which this 
occupation was justified, and hnes of division marked out 
between their transatlantic possessions, offer a most inte- 
resting subject for the investigation of the historian. Among 
the various titles to this continent derived from papal grants; 
first discovery; prior occupation; or actual possession; it is 
not easy to fix upon all the eras, when each of these different 
claims was first set up, nor when it was generally admitted to 
be valid. In most instances the opposing parties have pro- 
ceeded upon different principles ; until they have been 
brought into hostile contact, when their conflicting preten- 
sions to American territory have been decided by an ap- 
peal to the sword. 

The oldest title of the European nations is not involved 
in so much doubt. It was founded upon papal grants. 
This continent was discovered at a time when none dared 
to call in question the right of the vicegerent of Christ, to 
dispose of the countries inhabited by the heathen, according 
to his sovereign pleasure. The bigotted feeling, which 
had justified the invasion of Palestine, and the destruction 

I 



of the followers of Mahomet ; though rendered less fictlve 
and advcntiirous by the severe checks received by the 
catholic princes in their romantic expeditions, was still 
the dominant spirit of the age ; and Europeans implicitly 
believed, that the divine origin of their religion gave to its 
professors the same right to all countries possessed by 
unbelievers, that the Israelites had to the promised Canaan, 
and that the Pope was authorized to distribute, in the 
fulness of his apostolic power, those countries, with their 
pagan inhabitants, among the faithful servants of the 
catholic church. 

A striking illustration of the state of feeling prevalent 
in Christendom, prior to the discovery of America, is to be 
found in the conduct of Prince Henry of Portugal, at the 
time he was pursuing those voyages of discovery towards 
the cape of Good Hope, which he had set on foot and pa- 
tronized. To prevent any of the other powers from par- 
ticipating in the advantages which he expected to secure 
to Portugal, he procured at different times from Eugene 
IV.. then on the papal throne, bulls granting to that crown 
all the countries which should be discovered by the Por- 
tuguese from Cape Non to the continent of India, toge- 
ther with the inhabitants, whom he authorized them to 
enslave.* 

This donation was then considered so valid, that Edward 
IV. of England caused John Tintam and William Fabian, 
subjects of his, who contemplated an expedition to Guinea, 
to relinquish it ; because the country fell within the boui^s 
of the grant to Portugal ;t and all Christian princes, influ- 
enced by their zeal for religion, were deterred from in- 
truding into those countries which the Portuguese had dis- 



* Robertson's America, Book I. ^33 
t Hakluyt, ft. 2. p. 2. 



covered. Their voyages, however, were confined to the 
coast of the eastern continent ; and about the time ihat 
they were turning the cape of Good Hope, Columbus disco- 
vered the Antilles, by steering a western course from Eu- 
rope. The existence of islands and a continent beyond the 
Atlantic had not before that time been suspected ; and 
when Spain applied to the pope for a bull confirming its 
title to these dissoveries, Alexander VI. granted one, giving 
to Spain all the countries west of a north and south line one 
hundred leagues west of the Azores ; thus leaving to Por- 
tugal an undisturbed title to ail the discoveries on the eas- 
tern continent south of ('ape Non ; which was, as Alexan- 
der VI. construed it, all that Eugene had intended to 
grant. 

Portugal, however, did not acquiesce in this construc- 
tion ; but claimed the islands discovered by Columbus in 
his first voyage, immediately upon his return to Spain, as 
within the limits of the grant by Eugene IV. ; and it ap- 
pears, from a memoir addressed by Robert Thorne to the 
English ambassador at the court of Spain, in 1527, that 
the Spanish crown offered to relinquish these discoveries to 
Portugal, as within that grant ; provided the latter would 
restore to Spain the goods of the Spanish Jews, that had 
taken refuge in Portugal, accordiiig to the treaty between 
the two powers, by which they had mutually agreed to 
restore fugitive subjects with their goods.* 

This agreement Portugal found it difficult to comply 
with ; or, perhaps, the new discoveries were not then consi- 
dered as worth the sum she would have been obliged to 
raise ; and she accordingly entered into a treaty with Spain, 
concluded June 6, 1484, by which the line of demarcation 
between their possessions was fixed at 370 leagues west 

* Hakluyt, Vol. I. p. 217. 



of Cape dc Verd, instead of the one prescribed in the buU 
of Alexander VI.* 

At that early period, the title to newly discovered coun- 
tries appears to have been derived from the apostolic power 
of the pope. Every Chris^tian prince, indeed, considered 
himself entitled to those countries, independent of any 
papal grant, from the religious obligation by which they all 
felt bound to convert the heathen; or to drive them from 
the possessions they so unworthily held : and the discovery 
of the countries inhabited by infidels gave them the privi- 
lege of first exerting their arms for the propagation of 
Christianity, and also a strong claim upon the considerate 
bounty of the father of the church ; but still, to him they 
looked for a confirmation of their claims, and for a distri- 
bution of the territories discovered. 

This is the foundation of the European title to the Ame- 
rican continent. The right derived from the labour and 
expense of discovery is a subsequent improvement, which 
we owe to the doctrines of the reformation and the diminu- 
tion of the papal power. Had not those great changes in 
the religious belief of Christendom taken place, the whole 
of the American continent, except Brazil, which fell to 
Portugal under the treaty of 1494, would probably to this 
day have been claimed and held by the Spanish crown. 
The expressions in the commissions given by Ferdinand 
and Isabella to Columbus, by Henry VII. to Cabot, and the 
voyages of discovery ordered by Francis I. do not refute 
the proposition, that this right originated in a papal grant. 
The first commission authorized Columbus " to discover 
and conquer islands in the ocean. "t It was, in fact, a per- 
mission to make war upon infidels in unknown parts, plainly 
beyond the limits intended to be assigned to the Porta- 

'* Muno's New World. t Hazard's Stat* Papers, p. !•. 



5 

guese ; and the subsequent negotiation and treaty with 
Portugal fully proves, that Spain did not then conceive 
herself so much claiming by discovery, as by grant from 
the pope and the consent of Portugal. 

The words in the commission to Cabot, authorizing 
him to discover countries " which were, before that time, 
unknown to all Christian people,"* are thought by Judge 
Marshallt to imply an admission of the right of any Chris- 
tian people, who had made a prior discovery : thus affording 
evidence of the early authority of that sort of title. 

With every disposition to submit to an authority so univer- 
sally and so justly respected as his, still, I cannot but incline 
to the opinion, that these words, though of general import, 
referred solely to Spain and Portugal, and that it was the 
expectation of Henry, that Cabot might make some discove- 
ries which would be construed to be without their grants; 
although their literal meaning would comprehend them. 
The construction of Alexander, by which the discoveries 
of Columbus were taken out of the grant of Eugene, justi- 
fied that conjecture ; and his ceasing to take any steps, sub- 
sequent to the discoveries of Cabot, to derive any benefit 
from them, proves that Henry did not mean to infringe the 
papal grant by that expedition. After Cabot's return, it 
was evident that his discoveries lay within the boundaries 
there prescribed ; and Henry appears, from that time, to 
have relinquished all serious thoughts of acquiring the sove- 
reignty of unknown countries.l 

Francis I. of France, a liberal and enlightened prince, 
but little affected by the'^ggijoerstitions of his age, and, during 
his long and eventful reigt^f'Sti^raliE^lllljj^^ of 

kostility wJbh Spain, so far questioned the validity of the 

* Hazard's State Papers, p. 9. t 8th Wheaton, 577 

X Robertsou'g America, Lib. 9. $ 6, 



6 

papal grant, as to send out several mariners atdiflerent times 
upon voyages of discovery. Whatever inference might be 
justly drawn from these voyages, if set on foot by another 
catholic monarch; when the pecuhar circumstances in which 
Francis was placed, are taken into consideration, they will 
appear to be but of small or no authority in favour of 
the right of prior discovery, unsanctioned by the head of 
the church. 

The first expedition, commanded by Verrazano, was in 
1524, in the midst of that bloody war with Spain, which 
was closed by the entire defeat and captivity of Francis. 
After this, Jacques Qiiartier made several voyages to Cana- 
da in the years 1534 and 1535, &;c. In 1540, De Roche 
was sent out with Quartier by the same monarch, as his 
lieutenant, and in 1542, De Roche built a fort, and win- 
tered in Canada.* At this period France and Spain were 
again at war ; and in that state the most scrupulous 
catholic could not be condemned, if he did not consider 
the transatlantic possessions of his enemy as more sacred 
than those in Europe. The same right of war which would 
have justified the invasion and conquest of Spain, would 
have authorized the invasion and occupation of her Ame- 
rican dominions. 

It does not appear that any permament establishments 
were then made ; and the title of Spain seemed to be gene- 
rally acquiesced in by the European powers, except Henry 
Vlll. who, having denied the supremacy of Rome, also 
questioned the validity of the gift to Spain and Portugal. 

This, however, was a novel doctrine, savoring of protes- 
tantism ; and more than a century elapsed after the dis- 
covery of America, before it obtained general currency. 

England, indeed, adhered to that principle during the 

* Harris' Collection, 811. 



reigns of Henry VIII. and Edward VI. ; but their successor, 
Mary, restored the catholic faith, and with it submission to 
the Spanish title to America. In her reign we hear of no 
claim of England to any part of this continent, nor of any 
voyages nor expeditions to America; although the commer- 
cial enterprise of the British nation was seeking new ave- 
nues to wealth in Russia, Turkey, and Nova Zembla, 

In France, too, the same unwillingness to violate the 
papal grant was manifested by the catholic party ; and the 
protestants there, as in England, led the way to its in- 
fringement. The first French colony sent to America, was 
under the patronage and direction of Admiral Coligny, the 
celebrated leader of the Hugonots; and the utter inditFe- 
rence manifested by the Court, at the massacre of those colo- 
nists by the governor of Florida for an intrusion upon the 
possessions of his master, (when no war existed between 
the kingdoms,) and the coldness with which the gallant 
avenger of his count)^^men (De Guerges, also a protestant) 
was received by t!ie minister, proves that the catholics still 
regarded the claim of Spain under the bull of Alexander 
as valid ; and that its violation by their heretic countrymen 
was justly punished. 

This colony was planted about the year I5n3.* 
Shortly after the destruction of this colony in 1567, Eli- 
zabeth being securely seated on the English throne, and 
the protestant party having established its ascendancy 
upon a sure foundation, a more systematic policy seems 
to have been adopted by that princess, for the purpose of 
securing a footing on this continent. Very little stress, 
however, appears to have been laid upon the prior disco- 
very of Cabot. The letters patent granted to Humphrey 

*" Ogilby's America, 107i 



Gilbert in 1578,* and to Walter Raleigh in 1584-5,tdo not 
refer to any such discovery. They merely authorize them 
to "discover and search such remote heathen and barbarous 
lands, not actually possessed of any Christian prince, as to 
them shall seem good," and to hold the soil of the country 
to the grantees. They were also empowered to fortify the 
places they chose to occupy, and to repel all persons 
attempting to inhabit within 200 leagues thereof; unless 
those places should be pre-occupied by the subjects of any 
Christian prince in amity zoith Elizabeth. These patents 
were, in truth, nothing more than authorities to annoy the 
Spaniards, then preparing to invade England, and to de- 
throne the head of the protestant party in Europe. These 
expeditions were hostile measures against Spain ; and to 
Gilbert and Raleigh patents were given to encourage them 
in their designs. Many other subjects of that queen were 
engaged in voyages of discovery and adventure, as they 
were then called ; and the only distinction made by them, 
as to the American discoveries in possession of Spain, and 
those that were not, was, to plunder the former, and to trade 
with the natives in the latter. The title of Spain was 
acknowledged to no part of America ; but the whole con- 
tinent was regarded as a good field for adventurous mariners, 
whether traders or buccaneers. 

This dispute between England and Spain raged witk 
more or less violence for many years, and may not be 
considered as settled until the year 1G70. Previous to 
that time, difficulties were constantly occurring between the 
subjects of the two crowns in this quarter of the globe* 
During the reign of Elizabeth, and also under her succes- 
sor, a continual war existed in America ; without any 
reference to the European relations of their respective 

* 1st Hazard's State Papers, 24. t Ih. 33. 



9 

kingdoms. A remarkable illustration of this is to be found iti 
the efforts made by the Spanish ambassador to England 
(Gondamor) to procure the execution of Raleigh for an inva= 
sion of his master's possessions in the new continent. 
James yielded to his request, so far as to order that gallant 
and unfortunate soldier to be brought to the block ; butj 
not choosing to acknowledge the Spanish title to the coun- 
try in which he had landed, (Guiana,) he issued a warrant 
for his execution upon a sentence of death, which had been 
passed sixteen years before against him on another ac- 
count, and which had laid dormant all that period.* 

This singular state of things continued, with the general 
understanding among the English, that '" therfe was no 
peace beyond the line," and the Spaniards, on their part, 
treating all visiters to their settlements as hostile invaders 5 
until by a treaty, concluded in IG70, between England and 
Spain, it was agreed that " the king of Great Britain and 
his subjects should remain in pos?ession of what they then 
possessed in America.'' This was the first recognition by 
Spain of a title to Anlerican territory in any European 
power but herself, and may be regarded as the era when 
the validity of the papal grant was formally relinquishedi 
From this date the right of discovery, connected withoccu= 
pation, may be considered to be estabhshed, and the triumph 
of the protestant principle over the catholic complete. 

Previous, however, to the conclusion of this treaty^ 
France, a catholic kingdom, had in some respects counte- 
nanced the protestant doctrine. In addition to what was 
done by Francis and CoHgnyj under Henry iV. (who was A 
protestant at heart,) colonies were sent out to the north- 
"Dstcrn parts of the United States and Canada ; and f). 

* 1st State Trials, 21f». 
52 



10 

commission given, dated 1603, to De Montz, constituting 
him Lieutenant-General in L'Acadie.* 

In this document, as well as in those patents given by 
James and his successor in England, no mention is made of 
the right of discovery ; but the settlement and occupation 
of the American continent are justified by reason of the 
unbelief of their inhabitants, and the desire of the grantors 
to extend the blessings of Christianity and civilization to 
barbarous, and, in some instances, almost uninhabited 
regions. 

Henry IV. in his commission to De Montz, expresses 
his motive to make a settlement in L'Acadie, to be " a 
zealous resolution to cause the inhabitants, men without reli- 
gion, to be converted to Christianity, and to draw them 
from the ignorance and unbelief wherein they are." 

James asserts the motive of granting the first Virginia 
charter, 1606,t and of planting that colony, to be "the 
propagating of the Christian religion to such people, as }et 
live in darkness and miserable ignorance of the true know- 
ledge and worship of God — and may in time bring the infi- 
dels and savages living in those parts to human civility and 
to a settled and quiet government." 

A similar motive is declared in the second charter, 
1609, J and, as the conversion of the aboriginals is declared 
to be the principal eifect desired from the colony, all 
catholics are forbidden to go thither until they have taken 
the oath of supremacy. So too in the third charter to Vir- 
ginia, 16] 1 ;§ the commission to Raleigh " to undertake a 
voyage into the south part of America," 1616 ;|| the charter 
to the Plymouth company, 1620 ;1[ the grant of Nova Sco- 
tiatt and of New-Albion ;ll the different proclamations con- 

• Hakluyt, Vol. 4. 1619. 1st Hazard, 45. t 1st Hazard,'60 

t lb. 68- $ lb. 72. II lb. 82. U lb. 103. ft lb. ISM. 

U lb. 160. 



11 

cerning Virginia and New-England by James ; the charter 
to Massachusetts, 1628;* to Lord Baltimore, 1032:1 ihe 
Carolina charters, 1664 4 that to Connecticut, 1664 ;§ 
to Rhode-Island, 1664 ;|| to William Penn, 1680 ;1I the 
motive to undertaking the colonies, and the chief end of the 
adventures are declared to be. by means of commerce and 
intercourse with the natives to bring them to the know- 
ledge of Christianity, and to bring them, by just and gentle 
manners, to the love of civil society. 

Such are the principles upon which the Europeans justi- 
fied the occupation of the American continent. The catho- 
lic and protestant monarchs dilFered only in this : that the 
former derived their title from the pope, who maSe the 
donation for the purpose of extending the kingdom of 
Christ; and the latter occupied the territory undei the same 
pretence, without a grant : but neither asserted thai prior 
discovery gave any right to the soil. The right of occu- 
pation was derived by both; either directly, or through the 
pope, from their obligation to ameliorate the condition and 
christianize the aboriginals, whose permission to make a 
settlement was generally asked and obtained. In the Bri- 
tish provinces, although individual instances may be found 
in which Indian rights were violated ; their title to the soil 
was always respected by the public authorities. It was 
not, indeed, regarded as a fee simple, which cannot pro- 
perly belong to wandering tribes in a hunter state. But 
that they had a right to territory within certain boundaries, 
and that they were treated with by the colonial govern- 
ments, from the first settlement of the country, until those 
governments became independent of the crown, to induce 
them to transfer and sell their title to the whites, are incon- 



* 1st Hazard, 239. t lb. 327. i 4th Vol. Remerabnincftr. 

$ lb. Vol. 3. p. 30. II lb. 34. ir lb. 104. 



12 

trovprtible facts. Upon the first landing of the colonists., 
they purchased, in person, of the Indian chiefs the title of 
the tribes to tracts required for their accommodation, and 
afterwards made agreement for the extension of thei?" limits 
upon thp increase of population. Such were the purchases 
made hy the first settlers at Jamestown and Plymouth, by 
the Dutch at New-York and Albany, the Swedes in the 
Delaware, by Baltimore in Maryland, and by Penn at 
Philadelphia, 

Afterwards, when civil governments were established, 
ajid conquests were made at the common expense in the 
Indig^^ wars, that grew put of the different habits and in- 
stitutions of the two parties, the legislatures or the royaj 
governors took the subject under their control, and pro- 
hibited citizens from purchasing the aboriginal title without 
public authority. In short, they assumed the right of pre- 
emption of that title, as a right- of the comrnunity, and it 
became vested in that body, or person, that possessed the 
constitutional right to act in its behalf. In this manner, 
the sea coast of the North American continent became 
studded with European settlements of various nations, 
which extended themselves into the interior, and along the 
shore, until they encroached upon the limits claimed by a 
colony of another power. This produced a conflict of in- 
terests, generally resulting in a decision by force, in which 
the mother countries often, although not invariably, sus- 
tained their colonies. In discussing the respective titles of 
the European powers, the right of prior discovery was, of 
course, strongly insisted upon, especially by those whose 
clainiii ^'ere not supported by the better title of actual 
occupation. 

All Christian princes professed to be equally desirous of 
civilizing and converting the savages ; and as none would 
allow the superior qualifications of their antagonists to 



13 

impart those benefits to the aboriginals, it became neces- 
sary to appeal to some other principle, by which their 
clashing claims might be settled. In this dilemma, it was 
natural to resort to the right of prior discovery, it having 
been the foundation of the papal grants, and of the right 
of Spain. This soon became gener^illy acknowledged as 
between Europeans, especially when followed by occupa- 
tion ; and the limits of their several claims were marked 
out by treaties, made at different times, by the principal 
powers. 



14 



CHAPTER II. 

Vafious claims to the Korth-Eastern coast of America, — PrO'- 
vincial Charters. — French Claims. — Korlh-West Terri- 
tory. — Treaty of 1763. — Extent of British Provinces at 
the commencement of the American Revolution, 

For more than two centuries after the discovery of Ame- 
rica, the greatest uncertainty prevailed as to the limits of 
the territory claimed by the British colonies ; and it was 
not until 1795, three centuries after that event, that the 
title of the United States to the whole territory compre- 
hended within the boundaries marked out by the treaty of 
1783, was acknowledged by Spain, one of the powers which 
originally disputed the British claim, and which was the 
last that recognized the title of (he United States. 

At the time of the first settlements by Europeans, no 
less than four powers laid claim to the sovereignty of this 
part of the continent ; and a fifth (Sweden) actually com- 
menced a colony upon the Delaware. 

Henry IV. of France, by his commission to De Montz, 
dated 1G03,* authorized him " to extend and establish the 
authority" of that monarch from the 4Gth to the 46th 
degree of north latitude. James I. of England 1606, 
granted to the London and Plymouth Companies, the pri- 
vilege of making two settlements on any part of the coast 
of America between the 34th and 45th degrees of north 
latitude -,1 all which country he called "Virginia," a name 
given by Raleigh, in honour of his royal mistress, to the 
place which he undertook to colonize, about 20 years 
before. 

" Harris's Collection, 1st vol. 613. t Hazard, 2d Tel. SO. 



15 

All the territory, from Connecticut river to the westward 
of Delaware bay, was claimed by the Dutch under the title 
of the New Netherlands ;* the southern part by Spain, as 
part of Florida. This last power also set up the papal gift 
against all these powers, although her claims had then fallen 
into disrepute ; and finally, her adverse circumstances com- 
pelled her to relinquish a title which all but herself were 
interested in denying. 

Such were the different claims to the North Eastern coast 
of America at the commencement of the seventeenth cen- 
tury ; and under these circumstances, some English adven- 
turers, acting under the London company, undertook to 
make a settlement under the grant, above referred to, from 
James I. 

By this grant they were empowered to establish a colony 
between the 34th and 4)st degrees of north latitude ; " in 
that part of America," as the grant expresses it, " called 
Virginia, and other parts and territories in America, either 
appertaining unto us, or which are not now actually pos- 
sessed by any Christian prince or people ;" and when they 
had selected a spot, the coast on either side for 50 miles, 
and the land 100 miles into the interior, became appro- 
priated to that colony. The other (Plymouth) company, 
named in the same charter, was authorized to do the same 
with similar privileges between the 38th and 45th degrees 
of north latitude. To prevent these companies from inter- 
fering with each other, the one which should last plant a 
colony, was forbidden to settle within 100 miles of the 
other ; and as the planters had it in view to trade with the 
Indians, it was provided that no Englishmen should be per- 
mitted to establish themselves in the interior behind either 
of these colonies, without the consent of the Directors of 

■* Smith's History of New Terk, 21. Ofilbey's America, 16$. 



16 

tlie several Companies residing in England, and appointed 
by the king. The colony first planted under this grant was 
at Jamestown, by the London company, which secured by 
that step a tract one hundred miles square. Finding this 
too small for their purposes, they applied three years after- 
wards for " a further enlargement and explanation of their 
said grant ;" and in 1600 an additional grant was made to 
the London company in the following words : 

" All those Lands, Countries, and Territories, situate, lying, 
and being in that part of America, called Virginia, from the 
Point of Landj called Caj)e or Point Comfort, all along the 
Sea Coast to the Northward, two hundred miles, and from the 
said Point of Cape Comfort, all along the Sea Coast to the 
Southward, two hundred miles, and all that Space and Circuit 
of Land, lying from the Sea Coast of the Precinct aforesaid^ 
up into the Land throughout from Sea to Sea, West and 
Northwest." 

The terms of this grant are very vague and indefinite. 
The first inquiry naturally suggested upon its perusal is : 
does the north and south line follow the windings and in- 
dentations of the coast, or is it to be a direct north and 
south line, and then to comprehend all the sea coast be- 
tween the parallels of latitudes at the extreme north and 
south points ? 

But the most essential question as to its meaning is, 
what is intended by the phrase, '' into the land from sea 
to sea, west and north west ?" From which end of the 
north and south line, should the western line commence to 
run? and from which end, that which runs to the north-west ? 
If the west line should run from the north end of the line, 
and the north-west line from the south end, as the order 
in which the boundaries are mentioned would lead one to 
conclude, they will meet before they reach the Pacific, and 
comprehend a tract of land of a triangular form, about as 
large as Peimsylvania. 

But if the other construction be adopted, the west line, 



17 

commencing at the south point, will run on to the Pacific ; 
whilst the north-west line will run up into the northern 
parts of America, until it strikes'the Frozen Ocean ; thus 
making the southern boundary of Virginia three thousand 
miles, the western boundary four thousand, and the north- 
eastern boundary five thousand miles in length. A con- 
struction rather too extravagant to be contended for, by a 
company which had only solicited an enlargement of a 
tract one hundred miles square. 

It must also be borne in mind, that this grant was made 
to certain adventurers residing in England, and certain 
local corporations, all incorporated under the name of 
" The company of Adventurers and Planters for the city 
of London for the first colony in Virginia." 

Within twenty years after the date of that grant, viz. in 
1624, the company itself was dissolved by a writ of quo 
warranto, in consequence of the mismanagement of the 
colony*, and the grant formally resumed by the crown. 

From that time, the land, or rather the right of pre-emp- 
tion of the soil, within the limits of the grant, whatever 
they might have been, reverted to the crown, with the ex- 
ception of such plantations as had been granted to the set- 
tlers •, and the inhabitants of that colony acquiesced in its 
title, until the commencement of the revolution. That this 
right became vested in the crown, and that the charter of 
1 GOO was no longer considered as binding, appears from 
the different grants of land, within those limits, to Lord 
Baltimore in 1632, and to the Carolina proprietors in 
1663-65. In these charters were comprehended largepor- 
tions of the old grant to the London company ; another 
part of the same was given to Wm. Penn, in 16 SO. The 
two tracts granted to Baltimore and Penn, were bounded on 

* Chalmer"s Col. Annals, 62. 
3 



18 

all sides by certain specified limits ;(1) but the Carolina 
grants extended to the South Sea between the parraliels of 

(l) The grant to Baltimore was as follows : " All that part of a 
peninsula, lying in the parts'of America, beaveen the ocean on the 
east, and the bay of Chesapeak on the west, and divided from the 
other part thereof by a right linie drawn from the promontory or 
cape of land called Watkin's Point (situate on the aforesaid bay 
near the river of Wighco) on the west, unto the main ocean on 
the east; and between that bound on the south unto that part of 
Delaware bay on the north, which lieth under the fortieth de- 
gree of northerly latitude from the equanoctial where New- 
England ends ; and all that tract of land between the bounds 
aforesaid, that is to say, passing from the aforesaid into the 
aforesaid bay called Delaware bay, in a right line by the de- 
gree aforesaid unto the true meridians of the first fountain of 
the river Powtowmack, and from thence tending toward the 
south unto the further bank of the aforesaid river, and follow- 
ing the west and south side thereof unto a certain place called 
Cinquack, situate near the mouth of the said river, where it falls 
into the bay of Chesapeak, and from thence by a straight line 
unto the aforesaid promontory and place called Watkin's Point, 
so that all that tract of land divided by the line aforesaid, drawn 
between the main ocean and Watkin's Point unto the promon- 
tory called Cape Charles." 

To William Penn was granted, " All that tract or part of land 
in America, with all the islands therein contained, as the same is 
bounded on the east by Delaware river, from twelve miles dis- 
tance northwards of New-Castle Town, unto the three-and-for- 
tieth degree of northern latitude if the said river doth extend 
so far northwards ; but if the said river shall not extend so 
far northwards, then by the said river so far as it doth extend ; 
and from the head of the said river the eastern bounds are to 
be determined by a meridian hne to be drawn from the head of 
the said river unto the said three-and-fortieth degree ; the said 
lands to extend westward five degrees in longitude, to be com- 



19 

latitude 31 and 36. Two years after the date of the first 
Carolina charter, the southern and northern boundaries 
were augmented to the 29th degree on the south, and 36 
degrees, 30 minutes, on the north. 

To these different grants neither the colonists, nor the 
provincial legislature of Virginia made any objection as 
infringing their chartered bounds ; nor did they, for the 
space of one hundred and fifty years protest against the 
existence of those provinces as violations of the ancient 
boundaries of the colony, although they diminished its size 
very materially, both on the north and sSuth. It is true, 
that a petition was sent in upon the grant to Baltimore, to 
represent, that the granting away of some of their chief 
places of traffic would dishearten the planters ,* some dif- 



puted from the said eastern bounds ; and the said lands to be 
bounded on the north by the beginning of the three-and-fortieth 
degree of northern latitude, and on the south by a circle drawn 
at twelve miles distance from New-Castle northward and west- 
ward, unto the beginning of the fortieth degree of northern lati- 
tude, and then by a strait line westward to the limits of longi- 
tude above mentioned." 

The description of the territory granted to the Carolina pro- 
prietors in the 2d charter, is in the following terras, viz. " All 
that province, territory, or tract of ground, situate, lying and 
being within our dominions of America aforesaid, extending 
north and eastward as far as the north end of Charahake river, 
or gulet upon a straight westerly line to Wyonake creek, which 
lies within or about the degrees of thirty-six and thirty minutes 
northern latitude, and so west in a direct line as far as the south- 
seas ; and south and westward as far as the degrees of twenty- 
nine inclusive northern latitude, and so west in a direct line as 
far as the south seas.'' 

* 1st Hazard, 337. 



20 

ficulties also occurred between the planters in Maryland. 
and some Virginians, as to Kent Island, which was denied 
to be within the limits of Baltimore's patent ; but the right 
of the crown to grant the same was not denied. 

In 1620 a grant was made to the Plymouth company of 
all the territory between the parallels of 40 and 48 degrees 
from the Atlantic to the Pacific* By a reference to the 
map it will appear, that this grant comprehended three- 
fourths of the old north-west territory, and by a necessary 
consequence interfered with the grant of 1609. The ex- 
tent of this intei^ereiice was but small, provided such a 
construction was adopted, as to make the northern boun- 
dary of Virginia run in a westerly direction, instead of to 
the north-west. If another construction had been taken, 
the western extension of the Plymouth grant to the Pacific 
would have been a mere nullity, inasmuch as the north- 
eastern boundary of the London company would have cut 
it off before it had passed Lake Erie. In the Plymouth 
grant there is an exception made of the lands meant to be 
granted, provided any part should be actually possessed or 
inhabited by any other Christian nation, or within the 
bounds of the Southern or Virginia colony. This provi- 
sion prevents any diminution of the grant of 1609 by the 
Plymouth charter ; but the grants to Massachusetts and 
Connecticut, under this Plymouth company, and the sub- 
sequent proceedings thereon by the crown, shows that, in 
the opinion of the original grantor, the Plymouth charter 
did extend to the Pacific, and that it did not interfere, in 
the portions granted to those provinces, with the limits of 
Virginia. 

In short, the crown acted upon the opinion, that the 
boundaries of Virginia had not the indefinite extension 

* 1st Hazard, 337. 



21 

which was insisted upon by that province when it became 
an independent state. This conclusion becomes irresisti- 
ble, upon an examination of the different patents. In 1623, 
the council of Plymouth granted a portion of the territory 
comprehended within the grant to that company, to certain 
of the first settlers in Massachusetts, described as follows, 
viz.* 

" All that parte of Newe England, in America aforesaid, 
which lyes and extendes betweene a greate River there, comon- 
lie called Monemack, alias Merriemak, and a certen other River 
there, called Charles River, being in the Bottcme of a certayne 
Bay there, comonlie called Massachusetts, alias Mattachusetts, 
alias Massatusetts Bay. and also all and singular those Lands and 
Hereditaments whatsoever tyeing within the space of three 
English Mylts on the South Parte of the said Charles River, or 
of any, or evcrie Parte thereof; and also, all and singular the 
Laades and Hereditaments whatsoever, lyeing and being within 
the Space of three English Myles to the Couthwarde of the 
Southerinost Parte of the saide Bay called Massachusetts, alias 
Mattachusetts, alias Massatusetts Bay ; and also, all those Lands 
and Hereditaments wliatsoever which lye, and be within the 
Space of three English Myles to the Northward of the said 
River called Monomack, alias Merrymack, or to the North- 
ward of any and every Parte thereof, and all Lands and Here- 
ditaments whatsoever, lyeing within the Lymitts aforesaid. North 
and South in Latitude and bredth, and in Length and Longitude, 
of and within all the Bredth aforesaide, throughout all the Mayne 
Landes there, from the Atlantic and Western Sea and Ocean on 
the East Parte, to the South Sea on the Weste Parte ; 

The next year, the king confirmed that grant by a charter, 
in which the settlers were vested with the powers of a civil 
and political government. 

In 1631, Lord Say, and others, procured, as trustees for 
the settlers in Connecticut, a sub-grant from the Plymouth 
council of another part of the same territory, of the fol- 
lowing description, viz.t 

" All that Parte of New-England, in America, which lies and 
extends itself from a River there called Naraganset River, the 

" 1st Hazard, 24L t lb. 318. 



22 

Space of forty Leagues upon a straight Line near the Sea Shore, 
towards the South Westy W^.st-and-hy- South or West, as the 
Coast Ho:h towards Virginia^ accounting three EngHsh Miles to 
the League, and also all and singular the Lands and Heredita- 
ments wiiatsoeverj lying and being within the Laiids aforesaid. 
North and South in Latitude and Breadth, and in Length and 
Longitude, of, and icithin, all the Breadth aforesaid, throughout 
the main Lands there, from the Western Ocean to the South 
Sea." 

In 1G35, the patentees of the Plymouth charter surren- 
dered the same to the crown :* and all the territory compre- 
hended within ltd limits, excepting such portions as had 
been conveyed to sub-grantees, became again vested in the 
king, in the same manner as before the date of the grant. 
In 1664, Charles II. granted to certain of the Connecticut 
settlers, and their successors, a charter of government, and 
confirmed and granted unto that colony, 

'' All that part of our dominions in New-England, in America, 
bounded on the East by the Narrogancett River, commonly 
called Narrogancett Bay where the said river falleth into the 
Sea, and on the North by the line of the Massachusetts planta- 
tion, and on the South by the Sea, and in Longitude, as the line 
of the Massachusetts colony running from East to West, (that is 
to say) from the said Narrogancett Bay, on the East, to the 
South Sea on the West part. ''t 

This charter was gi ven subsequently to the surrender of the 
Virginia and Plymouth charters ; and the crown, in which 
was then vested the right to explain, extend, or diminish the 
boundaries of all colonies which were under the royal go- 
vernment, declared the western boundary of Massachu- 
setts to be the Pacific, and assigned that to Connecticut 
also, as its western boundary, granting to that colony all the 
territory to the eastward thereof, within certain north and 
south boundaries. About twenty years after the granting 
of the Connecticut charter, the first Massachusetts charter 

* Chalmers, 95, t 2d Vol. Remembrancer, Appendis, 32. 



23 

vras vacated by the judgment of the king's bench; and upon 
the accession of William and Mary, a new charter was 
granted to Massachusetts, in which her boundaries were 
described as follows, viz.* 

*' All that part of Ne\r England, in America, lying and ex- 
tending from the great river commonly called Monomack, alias 
Merrimack, on the north part, and from three miles northward 
of the said river to the Atlantic or Western Sea, or Ocean, on 
the South part, and all the lands and hereditaments whatsoever, 
lying within the limits aforesaid, and extending as far as the 
outermost points or promontories of land, called Cape Cod and 
Cape Malabar, north and south in latitude, breadth, and in 
length, and longitude, of and within all the breadth and compass 
aforesaid, throughout the main land there, from the said Atlantic 
or Western Sea and Ocean on the east part, towards the South 
Sea, or westward, as far as our colonies of Rhode Island, Con- 
necticut, and the Narragansett country. And also all that part 
and portion of main land, beginning at the entrance of Piscata- 
way Hai'bour, and so to pass up the same into the river of Ne- 
wichwannock, and through the same into the furthermost head 
thereof, and from thence north-westward, till one hundred and 
twenty miles be finished, and from Piscataway Harhoiu's mouth 
aforesaid, north-eastward along the sea coast, to Sagadohock, 
and from the period of one hundred and twenty miles aforesaid, 
to cross our land to the one hundred and twenty miles before 
reckoned up, into the land from Piscataway harbour through 
Newichwannock river ; and also the north half of the isles of 
Shoals, together with the isles of Capawock and Nantuckett, near 
Cape Cod aforesaid ; and also the lands and hereditaments lying 
and being in the country or territory commonly called Accada 
or Nova Scotia, and the said river of Sagadock, or any part 
thereof." 

In this second charter to Massachusetts, was included the 
territory belonging to the Plymouth colon}', which before 
that time had existed as a separate province. The southern 
boundary consequently does not commence, as before, to 
the south of Charles river, but runs along the boundary of 
Rhode Island and Connecticut. The tract conveyed (o 

* 2fl Remembrancer, Appendix, 10. 



24 

Rhode Island, in the year 1664, is described in thenote,(lj 
and the extent of Connecticut appears by her charter of the 
same date. 

These two last charters, granted to Massachusetts and 
Connecticut, so long after the resumption of the Virginia 
and Plymouth patents, gave, so far as the king of Great 
Britain could give, the territory between the north boundary 

(l)" All that part of our dominions, in New-England, in Ameri- 
ca, containing the Nahahtick and Nanhygansett, alias Narragansett 
Bay and countries and parts adjacent, bound on the west or 
westerly to the middle or channel of a river there commonly 
called and known by the name of Pawcatuck, alias Pawcawtuck 
river, and so along the said river, as the greater or middle stream 
thereof reaches or lies up into the north country, northward 
unto the head thereof, and from thence by a straight line drawn 
due north, until it meet with the south line of the Massachu- 
setts colony, and on the north or northerly by the aforesaid 
south or southerly line of the Massachusetts colony or planta- 
tion, and extending towards the east or eastwardly three English 
miles to the east and north-east of the most eastern and north- 
. eastern parts of the aforesaid Narragansett Bay, as the said bay 
lieth or extendeth itself from the ocean on the south or south- 
wardly, unto the mouth of the river which runneth towards the 
town of Providence, and from thence along the eastwardly side 
or bank of the said river (higher called by the name of Sca- 
cunck river) up to the falls called Patucket falls, being the most 
westwardly line of Plymouth colony : and so from the said falls, 
in a straight line due north, until it meet with the aforesaid line 
of the Massachusetts colony, and bounded on the south by the 
ocean, and in particular the lands belonging to the town of Pro- 
vidence, Patuxit, Warwicke, Misquammacock alias Pawcatuck, 
and the rest upon the main land,- in the tract aforesaid, toge- 
ther with Rhode-Island, Blocke-Island, and all the rest of the 
islands and banks in the Narragansett Bay, and bordering upon 
the coast of the tract aforesaid." 



26 

of Massachusetts and the south boundary of Connecticut, 
from the Atlantic to the Pacific, to the inhabitants of ihose 
colonies. They contained no provision in favour of tiic rij^ht 
of the Virginia colony ; and as the boundaries of that province 
then depended upon the royal will, no legal exception could 
be taken to the validity of the giants to the New England 
provinces, even supposing that that construction should 
have been given to the charter of 16©9, which would occa- 
sion a clashing of the claims of the diiTerent grantees. If, 
however, the less violent construction should be given to 
the Virginia patent, no interference on the part of Massa- 
chusetts and Connecticut will take place ; but a!i the grants 
will have their legitimate and literal effect, without sup- 
posing any inconsistency on the part of the grantor. 

These were the only charters given by the crown, prior 
to the surrender of the Carolina charter in 1728 ; and the 
proper conclusion to be drawn therefrom would be, that so 
far as the British crown had power to grant, the proprietors 
of Maryland, Pennsylvania, Carolina, and the colonists of 
Massachusetts and Connecticut, as bodies politic, possessed 
the territory within the boundaries prescribed in their re- 
spective charters ; whilst the boundaries of Virginia were left 
undefined by the charter of 1609, and also by the procla- 
mation of Charles I. establishing a government upon th3 
dissolution of that charter,* and depended upon the plea- 
sure of the crown. 

The territory now included within the boundaries of 
New-York, New-Jersey and Delaware, was differently situ- 
ated. Colonies of the Swedes and of the Dutch had been 
established in those parts ; and although the Swedes had 
submitted to the government of the Dutch, and thus simpli- 
fied the question as to the European title, still the English 
title was disputed by the Dutch, who claimed it as the first 

* 1st Hazard. 

4 



26 

actual occupant?. Such is the ground upon which their 
title is placed by governor Stuyvesant, in his answer* to 
Richard Nicholls, who dennanded a surrenderor the colony, 
as within the territory belonging to Great Britain. It is 
worthy of observation, that even at this late period, although 
the voyage by Hudson, in the Dutch service, had previously 
beenalluded to, as an argument in favour of the Holland 
claimi, the Dutch governor did not refer to prior discovery 
as a ground of title ; nor did the states Netherlaad, in their 
original grant to the West India company, allude to Hud- 
son's voyage.! Colonel Nicolls, on his part, did not trouble 
himself with arguments in favour of his master's claim ; but 
calhng it unquestionable, demanded an immediate surren- 
der to the British arms. 

This expedition was fitted out to reduce the colony of 
the New Netherlands, by Charles II. who shortly after his 
restoration, in 1664, had granted to his brother afterwards, 
James II. the territory claimed by the Dutch. 

The boundaries of New-York were described in the fol- 
lowing manner, viz.| 

" All that part of the main land of New England, beginning 
at a certain place called or known by the name of St. Croix, next 
adjoining to New Scotland, in America, and from thence ex- 
tending along the sea coast unto a certain place called Pema- 
quie, or Pemaquid, and so up the river thereof, to the furthest 
head of the same, as it tendeth nortliward ; and extending from 
thence to the river of Kimbequin, and so upwards by the short- 
est course to the river Canada northward ; and also all that 
island or islands commonly called by the several name or names 
of Meitowacks, or Long-Island, situate and being towards the 
west of Cape Cod and the narrow Higansetts, abutting upon the 
main land, between the two rivers there, called or known by 
the several names of Connecticut and Hudson's river, together 
also with the said river called Hudson's river, and all the land 
from the west side of Connecticut river, to the east side of Dela- 
ware bay, and also all those several islands, called or known by 
the names of Martin's Vineyard, or Nantuck's, otherwise Nan- 
tucket." 

* Smith's History of New-York, 37. f Hazard. 1st vol. 1-21. 
I Smitli'b ^cw-Yoik, 31. 



27 

Part of this tract was conveyed the same year, by the 
Duke of York, to Lord Berkley and Sir George Carteret, 
under the description of New-Jersey. 

The boundaries of New- Jersey were as follows : 

" All that tract of land adjacent to New England, and lying 
and being to the westward of Long Island, and bounded on the 
east part of the main sea, and partly by Hudson's river; and hath 
upon the west, Delaware bay or river, and extendeth southward 
to the main ocean as far as Cape May, at the mouth of Dela- 
ware bay; and to the northward, as far as the northermost 
branch of the said bay or river of Delaware, which is forty-one 
degrees and forty minutes of latitude ; which said tract of land 
is hereafter to be called by the name or names of Nova Csesarea 
or New-Jersey." 

The Dutch governor of New- York being unable to offer 
effectual resistance, surrendered to the commanders of the 
English forces ; and the settlements on the west bank of the 
Delaware, dependent on New Amsterdam, followed his ex- 
ample. These last settlements were strictly without the 
grant to the Duke of York; but being captured from the 
Dutch, were annexed to the government of New- York, as 
they had been before the conquest ; and so continued until 
they were conveyed by the description of the lower counties 
on the Delaware, to William Penn. Penn at first annexed 
these counties to his province ; but difficulties afterwards 
arising between their representatives and those from Penn- 
sylvania, he assented to their request for a separation ; and 
they afterwards constituted a separate province. 

Part of the territory included within the boundaries of 
New-York, was also claimed by the colonies of Massachu- 
setts and Connecticut. Their claims were rested on the 
ground of the prior occupation of the Dutch, and the spe- 
cial exception in their grants of all such parts of the said 
territory as should be previously occupied by any Christian 
people. A^ to such parts of New-Yofk as had been then 
taken possession of by the Dutch, no doubt could be enter- 



28 

tained, that they were not comprehended within the granti 
to Coiinecticut and Massachusetts; and as to the uninha- 
bited parts, conflicting claims as to boundary hnes arose, 
which were settled, by commissioners, with Massachusetts 
in the year 1787, and with Connecticut, first with the 
Dutch, in 1650, and finally in 1683. 

In this manner all the sea coast of North America, from 
the southern boundary of Acadia to the northern boun- 
dary of Florida, was claimed and parcelled out into different 
provinces by the British crown. Acadia also had been 
conquered from France by Cromwell ; but Charles, in 
1668, receded it, without any specification of boundaries ; 
and thus the northern boundary remained unsettled, until 
the treaty of Ryswick, when it was fixed at St. Croix. 

The southern boundary was partially agreed upon by 
the treaty of 1 670, in which it was assented to by Spain, that 
Great Britain should possess what her subjects already 
occupied in America. This was recognizing a principle 
by which the difficulties might be adjusted ; but, although 
provision was made by the treaty of Seville, in 1 729, for the 
appointment of commissioners, and, by the convention of 
Pardo, in 1739, of ministers for that purpose, no measures 
were taken to settle this very indefinite boundary between 
Carolina and Florida ; until the treaty of 1763 put Florida 
into the possession of Great Britain, and thus obviated the 
necessity of any decision upon the question. 

To the north, although the claims of France were settled 
in the manner above described, conflicting claims arose 
between the province of Massachusetts, and Mason and 
Gorges, sub-grantees of the old Plymouth company. To 
the former had been conveyed, in the year 1635, the fol- 
lowing tract : — 

^ All that part ofinhe Mayn Land of New England aforesaid, 
"beginning from the middle part of Naumkeck Run and from 
Aence to proceed eastwards along the Sea Coast to Cape Anne, 



29 

and round al)OUt the same to Pischataway Harbour, and soe 
forwards up within the river of Newgewanacke, and to the fur- 
thest head of the said River, and from thence northwestwards till 
sixty miles bee finished, from the entrance of Pischataqua Har- 
bor and also from Naumkecke through the River thereof up 
into the land west sixty miles, from which period to cross 
over land to the sixty miles end accompted from Pischataway 
through Newgewanacke Rivei- to the land northwest aforesaid ; 
and aisoe all that the South Halfe of the Isles of Sholes,all which 
lands, with the Consent of the Counsell shall from henceforth 
be called New-hampshyre : And also ten thousand acres 
more of land in New-England aforesaid, on the south-east part 
of Sagadihoc,"* 

This tract afterwards fornned the province of New- 
Hampshire. 

The same year Ferdinand Gorges obtained a grant from 
*he same company, (which was, in the year 1639, confirmed 
by the king,) of the following tract, viz : — 

" All that parte, purparte and portion of the maine land of New- 
England aforesaid, beginning at the entrance of Piscataway har- 
bour, and soe to passe up the same into the River Newicha- 
wockee, and through the same into the farthest head thereof; and 
from thence northwestwards till one hundred and twentie milles 
be finished, and from Piscataway harbor mouth aforesaid north 
Eastwards along the sea coast to Sagedahadocke, and up the 
River thereof to Kuybecky River ; and through the same to the 
heade thereof, and unto the land North west warde, until one 
hundred and twentie milles be ended, being accounted from the 
mouth of Sagedehadocke and from the period of one hundred 
and twentie milles aforesaid, to crosse overland to the hundred 
and twentie milles, and formerly reconed up into the land from 
Piscataway harbor through Newichawocke River : and also the 
North halfe of the isles of Shoals, together with the isles of Ca- 
pavocke nere Cape Cod."t 

This is now a part of the state of Maine. The residue of 
that state was added, by the orders of William and Mary, 
after the French had relinquished their claims to the north 
of New-England, and was placed under the government of 
Massachusetts, upon the renewal of the charter of that 
state, in 1792. 

* Ist Hazard, 384, ] lb. 442 



30 

After the grant to Mason, and before any decisive steps 
had been taken to confirm his title, some of the settlers of 
Massachusetts had established themselves beyond the 
northern boundary of that state, and having purchased the 
Indian title, disclaimed the proprietorship of Mason. In 
this they were supported by the general court of Massachu- 
setts, which did not relish the idea of a distinct community 
in their neighbourhood, acknowledging the supremacy of a 
proprietor of the cavalier, or high church party. During 
the civil war in England they succeeded in establishing, 
with the consent of the settlers, the government of Massa- 
chusetts over the New-Hampshire settlements. This con- 
tinued for many years after the restoration, during which 
time the heirs of Mason and Gorges, sustained by the Bri- 
tish court, were engaged in a dispute with the settlers, who 
were supported by the general court of Massachusetts. 
Mason and Gorges claimed under the paramount title of the 
crown ; and the settlers under Indian grants : and such was 
the opposition to the grantees of the king, that they 
were unable to establish their claim. The heirs of 
Gorges compromised with the government of Massachu- 
setts about the year 1G74, and transferred to that province 
his claim, and Mason assented to the steps taken on the 
part of the crown to subdue the opposition of Massachu- 
setts. As a preliminary step, Mason gave up all powers of 
^rovernment as proprietor or feudal lord. Charles accord- 
ingly erected New-Hampshire into a royal province ; and 
though Massachusetts again resumed the reins of govern- 
ment upon the deposition of Andross, in 1689; still the 
advisers of William and Mary did not think proper to annex 
New-Hampshire to Massachusetts, and it was accordingly 
placed under a sort of provisional government, dependent 
on the pleasure of the crown ; in which state it remained 
until the American revolution. 

Very little is to be found in the history of this dispute, 



31 

Illustrating the questions which arose at the formation of 
our government, as to the right of pre-emption to vacant 
lands, and Indian titles, excepting the early denial by the 
general court of Massachusetts of the paramount right of 
the king. This was more remarkably exemplified after- 
wards, by their resistance to the claims of Andross. He de- 
manded of the inhabitants of that province a patent tax, or 
pre-emption fee, on the ground that they had purchased 
their lands of the aboriginals without the consent of the 
king; and with that contempt of the Indian rights which 
has lately characterized the proceedings of the exe- 
cutive of Georgia, he told the settlers, that " he did not 
regard the Indian deeds as better than the scratch of a 
bear's paw." 

The result of this controversy was the seizure of Andross 
by the people of Massachusetts, who sent him to England. 
When this event occurred the inhabitants of the New- 
England provinces assumed the powers of government, 
according to their old charters, without waiting for direc- 
tions from England.* 

There was always a remarkable difference between the 
principles of the New-England people, and those of the 
southern provinces, as to their relations with the British 
crown. The latter were royal, or proprietary provinces, 
and deduced their title to the soil from royal grants, and 
generally deferred to the authority of the crown. The former 
appealed, indeed, to their charters, as a protection against 
European encroachments ; but they regarded their title to 
the soil as based upon their labour, and actual occupation 
with the consent of the aboriginals. 

The latter acknowledged the power and rightof the crown, 
and of their proprietors, to alter and change their chartered 
limits at pleasure. The eastern people contended that 
their charters were given to the colonists themselves, and 

* Chalmers, 469. 



32 

could not be altered without their consent. Massachusetts^ 
Connecticut, and Rhode-Island, therefore, assumed, upon 
the overthrow of the despotic government of the Stuarts, 
the powers of government under their old charters, which 
had been declared forfeited. Massachusetts, indeed, sub- 
sequently submitted to accept of a new charter with ex- 
tended boundaries ; but the other colonies existed under 
their original patents until after the revolution. 

The difficulties that the authorities at home met with in 
subduing the refractory ,-pirit of Massachusetts, and the 
necessity which they conceived to exist of adopting some 
general system of government for the North American set- 
tlements, after the British revolution, induced them to nego- 
ciate for the surrender of the proprietary governments. 

The proprietors of New- Jersey were persuaded to surren- 
der their province to the crown in 1702, and the proprie- 
tors of Carolina followed their example in 1728. William 
Penn also entered into an agreement for the surrender of 
his proprietary rights, but was prevented by sickness from 
executing it. 

After these surrenders the British colonies continued, 
until the French war in 1756, in the following state, viz: — 
The provinces of Marjdand, Pennsylvania, and Delaware, 
were proprietary ; those of New-Hampshire, Virginia, 
New-York, New-Jersey, and the Carolinas, were subject 
to and dependent upon the crown ; the other New-England 
provinces were of a peculiar character, holding charters 
granting to the colonists themselves certain boundaries and 
powers of government. 

The proprietary provinces, as well as Rhode-Island and 
New- Jersey, were confined within specified and limited 
boundaries : but the chartered boundaries of Massachusetts, 
Connecticut, Virginia, and Carolina, were not defined to the 
west, except by the South Sea. 

Xbe boundaries of New-Hampshire, after it became a 



ioyal province, were not accurately defined ; but she had 
no pretension to any land beyond the Connecticut riven 
New-York had a vague and indefinite claim, like that bf 
Virginia. It had become a royal province by the acciessiori 
of the grantee to the crown ; and as its boundaries were 
not limited to the north nor to the west, except by Dtla° 
ware hay, which runs in a north west direction, so far as it 
Continues to be a bay, it stood in a peculiar situation : 
Massachusetts and Connecticut claiming, on their part, a 
large portion of the territory within its present limits, as 
within their charters, and New- York resisting their claim, 
upon the ground of the actual occupation of the Dutch, 
prior to the granting of those charters^— a case specially 
provided for in those instruments ; and the restriction of the 
western boundary of Connecticut, by different agreements, 
in 1650, 1664, and 1683, by which the division line between 
that colony and New-York was to be 20 miles to the east 
of Hudson river; and that consequently the western boun- 
dary of Massachusetts, as prescribed by the second charter, 
given subsequent to the settlement of that boundary, could 
not be extended farther to the west than the line so agreed 
upon. The exercise of the powers of government by thfe 
public authorities of New-York, for a long series of years, 
over the land in dispute, was also strongly insisted upbno 
While New-York thus resisted the claims of the eastern 
provinces, she had an indeterminate and extensive claim 
to the north western territory, founded upon its relations 
with those Indian tribes, then known as the five, and after- 
wards as the six nations. 

These tribes claimed, either in their own right or as be- 
longing to their tributaries, most of the territory south of 
Lake Erie, and bordering on the Ohio. They also claimed 
the whole of the western part of the state of New- York. 
The extent and limits of their claim will more particularly 
appear by an examination of the maps of the early geogra- 



- 34 

phers and travellers. Vide Van Kenlen's Atlas, 1720, 
Bellin's maps, 1774, Hcnnopin and Ogilby, 166. 

This claim of theirs, indefinite as in its nature it neces- 
sarily was, was so far acknowledged by the other pro- 
vinces, that the governors of Maryland, Pennsylvania, Vir- 
ginia, and New- York, thought it necessary to procure their 
assent to any occupation of the lands west of the Alleghany : 
and by the proceedings of a council, held in 1744, for the 
purpose of concluding a treaty with the six nations, it ap- 
pears not only that their title to the western lands was un- 
questioned, but that these tribes were under the special ju- 
risdiction and superintendance of New-York.* This spe- 
cial and exclusive jurisdiction of the provincial govern- 
ment of New-York over the six nations and their territory ; 
the acknowledgment by these tribes of the sovereignty of 
that state, and the acquiescence of the other provinces in 
the claims of New-York, and their reiterated applications 
to the governor and council to treat with those Indians, 
through and with their consent, are facts as conclusively 
established as any events in our colonial history. The re- 
cords of the province, from the time of its surrender by 
the Dutch, in 1664, to the eraof the American revolution, are 
full of proceedings demonstrating the above propositions. 
Virginia, in particular, acknowledged the jurisdiction of 
New- York, at sundry times. In 1G9 1, the governor of that 
province treated with those nations through the governor of 
New- York. The next year he requested that all the Indians 
living beyond the Appalachian mountains, whenever they 
might travel to the south thereof, should procure New-York 
passes; and in 1721, the legislature of Virginia passed an 
act recognising that same line as the boundary between the 
Indians, under the respective jurisdiction of the two pro- 
vinces. 

Subsequent thereto, about 1740, it was agreed at Albany, 

'' CoKlen, Appendix, from 99 to 130. 



S5 

that the Indians subject to Virginia should not go to the 
westward of those mountains without passports from the 
governor of Virginia ; and that the Indians hving west 
thereof should not go to the east without a New- York pass- 
port.* Thus settling, as far as it was then necessary, the 
boundaries of the two governments. 

Indeed, the validity of the claim of the six nations to the 
western territory, the dependence of those nations upon 
New- York, and the acquiescence of Massachusetts, Con- 
necticut, Virginia, Maryland, and Pennsylvania, in that de- 
pendence, are to be seen in all the colonial records. They 
are more particularly set forth in a report by a committee 
of congress, which will be found in the next chapter. 

The southern limits of Carolina were still undefined, and 
the creation of a new province within its limits, shortly after 
the surrender of the charter, viz. in 1732, by the name of 
Georgia, became the cause of additional embarrassment. 
In that year, general Oglethorpe, and some other charitable 
individuals, formed an association for the purpose of esta- 
blishing a colony in the southern part of Carolina, for the 
reception of their impoverished and destitute countrymen. 
With this view they procured to themselves, "as trustees 
for establishing the colony of Georgia, in America,'' a grant 
from the crown of" seven-eighths of the territory lying be- 
tween the Savannah river and the Alatamaha, and westward 
between the heads of those rivers respectively, in direct 
lines to the South Sea." The one-eighth of the above ter- 
ritory was reserved to satisfy the claim of lord Carteret, 
who had not then surrendered his title as proprietor o4" 
Carolina. 

It was furthermore provided in this charter, that at the 
end of twenty-one years, the powers of government within 
the province should revert to the crown. 

* Colden, Appendix, 121. 



36 

!(Mie head of the Alatamaha, one of the rivers mentioned 
in the Georgia charter, extends to the 34th ; the head of the 
Savannah to the 35th degree of north latitude. Hence, 
under that grant, the trustees of Georgia took only the terri- 
tory between those rivers, and a tract, sixty miles wide, ex- 
tending between the heads of the same rivers westward to 
the South Sea, provided Great Britain had then the right to 
grant the same ; but if not, then only so far as her right 
extended. 

|n 1752, the trustees surrendered their charter to the 
crown, and thus placed this province upon the same footing 
with South Carolina, of which Georgia formerly made a 
part, and which still possessed and exercised jurisdiction 
over a large tract of territory south of the Alatamaha.* 

Until this time the British colonists had confined them- 
selves to the sea coast ; and although their charters repre- 
sented them as extending westward to the Pacific ; still their 
titles were unaccompanied by possession, and other pow- 
ers entirely disregarded them, or looked upon them as 
merely empty claims. Whatever might have been the 
construction afterwards put upon these grants, at that time 
the boundaries of the provinces, and the jurisdiction of 
thei!;' legislatures, did not reach beyond the Apalachian 
mountains. 

'I'hey now found an unexpected claimant in their rear : 
Canada, on the north, and Louisiana^ on the south, hacl 
been claimed and occupied by France, in the same manner 
as the British had established themselves upon the inter- 
mediate sea coast; and the title of France to those coun- 
iries was regarded as indisputable as the English title 
to British America. 

By right of discovery, followed by occupation, which 

'f Rtport of the Attorney -General of the United States te Congress, from 
pa^e 100 to 144. 



37 

had now become a valid title, the French crown claimed 
the Mississippi and its branches, and, as a corollary tiom 
that proposition, the lands, to a reasonable extent, watered 
by those streams. In the prosecution of that claim, the 
French had (subsequent to 1673, when the French first 
visited the Mississippi by the way of Canada,* and, conse- 
quently, first explored or traversed the UUnois country or 
western territory, and 1683, when its mouth was entered 
by La Salle) sought to establish themselves at the mouths 
of the Mississippi and Alabama, and to extend their settle- 
ments and forts to the interior along the course of those 
rivers and their branches. Between the beginning and the 
middle of the eighteenth century, they had established 
themselves at Mobile, New -Orleans, Tombechbe, and 
Tholouse in the Alabama territory,! and built forts at those 
places for the protection of their traders and settlers. Ad- 
vancing thus up the valley of the Mississippi, from the gulf 
of Mexico in a northern direction, and up the St. Lawrence 
and the lakes from the gulf of St. Lawrence, in a south-west 
direction, and having traversed the intermediate territory, 
the French conceived the idea of anticipating the growth of 
their settlements, and of uniting the two governments by a 
chain of forts along the course of the Ohio. By this step they 
would have confined the English colonies to the eastward of 
the Alleghanies, and secured to France the western territory, 
and the greater part of the Indian trade. Between 1 743 
and 1754, thegovernor of Canada took measures to execute 
this resolution, by causing forts to be erected and troops 
stationed at Kaskaskia, at posts established at the mouth of 
the Missouri and on the Illinois and Miami, at Natchez, and 
at Du Quesne, now Pittsburgh.]: In this manner France 
endeavoured to establish her claim to the Illinois country, 
and to place it upon the solid footing of actual occupation. 

* Marshall's Washington, 349. t Pownall, Appendix, 25, 

t lb. 24, 25. 



38 

©n the other hand, the colonists, alarmed at the rapid 
strides of the French, took measures, although somewhat 
later, to obtain a footing in the same country. Influential 
individuals in England and America associated themselves 
under the name of the Ohio company, and procuring a 
grant from the crown for 600,000 acres of the land in dis- 
pute, prepared to establish trading houses among the In- 
dians.* 

Upon hearing of this, the governor of Canada gave no- 
tice to the governors of New York and Pennsylvania, that 
he should regard any encroachment upon the lands west- 
ward of the AUeghanies as a violation of the territories of 
France ; and in pursuance of that notice, arrested the 
English trading among the Indians, and confined them as 
prisoners. By this step the titles of England and France 
to the country west of the Appalachians were put in issue ; 
and directions were sent out to the governors of the British 
colonies to take effectual measures to dislodge the French 
from their posts on the Ohio. Similar directions were 
not given respecting the posts on the Tombeckbc, and in 
the Alabama territory, as they were considered as more 
particularly belonging to the French. 

Union was recommended to the colonies, and commis- 
sioners from the different provinces met at Albany, to con- 
cert measures for mutual defence. 

Pennsylvania being a proprietory province, and from its 
pacific character an unsafe dependence, when it became 
incumbent to resort to arms, Virginia, as the nearest royal 
province to the scene of danger, was the foremost in taking 
the necessary steps to vindicate the title of the British 
crown. 

In 1753 the assembly of Virginia, pursuant to the policy 
then adopted, passed an act for the encouragement of set- 

* 1st Marshall's Washington, 354. 



39 

tiers on the waters of the Mississippi.* This is the first act 
by the provincial government of that colony, in which any 
jurisdiction was claimed over the western territory. In 
1754, another act for a similar purpose was passed ; and 
two hundred thousand acres of land on the western waters, 
one hundred thousand of which were within the limits of 
Pennsylvania,! were also promised by the royal governor to 
the officers of a regiment, raised to resist the encroachments 
of the French. This regiment afterwards marched to re- 
move the French, at the confluence of the Alleghany and 
Monongahela ; and in that attempt hostilities were formally 
commenced. This war had for its object the establishment 
of the title of England to the western territory. The 
British crown did not, even then, claim all the Illinois coun- 
try; but claiming enough, so as to be able to make con- 
cessions in the course of negociation, she particularly re- 
sented the occupation by the French of posts so near her 
colonies as Du Quesne, and regarded it as an attempt to 
expel her subjects from the continent. 

To which of the belligerents the part of the country in 
dispute belonged, according to the European doctrine, it 
would be difficult to decide. If it be admitted that Eng- 
land, as the first discoverer and occupant, had a right to 
the country inland, the extent of her claim to an immense 
and unexplored continent like this, would still be in doubt. 

France would have a title to Canada on the the north, 
and Louisiana on the south, upon the same principles upon 
which England founded her claim to the thirteen colonies ; 
and the configuration of the sea coast would necessarily 
oblige the English to diminish their western hmits, as pre- 
scribed by their charters ; or the French to abstain from 
making any settlements in the interior. They could not 
both extend their claims, upon right lines, into the bosom 

* Hd vol. S?«r§t Journal of Old Congress, 187. t Vide Appendix. 



40 

of the continent, and it was obvious that neither possessed 
such a manifest superiority of title, as to put an end to the 
controversy. 

The territory, it is true, fell within the chartered limits 
of several of the British provinces ; but France did not 
feel bound by the patents of another power to which she 
had never assented, and which necessarily contravened the 
principles by which the occupation of the American conti- 
nent was justified. 

The date of the different settlements afforded no crite- 
rion by which the question could be settled. In 1542 a 
French governor wintered in Canada. In 1563 the pro- 
testant settlement under Laudownian was established in 
Florida. These were of earlier date than the tempo- 
rary colonies planted by Gilbert and Raleigh ; but they 
were also ephemeral, and little or no stress could be laid 
upon them as proofs of the title of France. The date of 
the commission to De Montz was earlier than the first grant 
to the London and Plymouth companies, and in this point 
the French had the advantage ; but, on the other hand, the 
English settlements were extensive and permanent, evin- 
cing a fixed design to cultivate the soil, and to reduce thef^ 
wilderness to the power of civilized man. 

The French, on their part, urged that the British settlers 
were confined to the Atlantic coast, and that the Apalachian 
mountains formed a natural boundary to their possessions, 
beyond which they had never attempted to advance, until 
they found the French in actual possession of the valleys of 
the Mississippi and Ohio. 

In this state of things all felt, that the interior boun- 
dary must be settled, by ncgociation or force; and, like- 
most controversies between nations of equal strength, 
it was ultimately defined by treaty after a long and expen- 
sive war. To the prosecution of this contest the colonies 
freely contributed men and money ; and Massachusetts ani 



41 

New- York were particularly distinguished for their exer- 
tions in subduing the common enemy. When the preHmi- 
naries to a treaty of peace were proposed, the arms of 
England were successful by sea and by land, and she did 
not feel satisfied with a mere definition of the dividing line 
between the American possessions of France and England ; 
but insisted upon retaining those parts which had fallen 
into her hands by the fortune of war. These terms France 
and Spain, which had been drawn into the contest after it 
had begun, were obliged to accede to ; and at the treaty of 
peace, France ceded to Great Britain, Canada, Mobile, and 
all, that she was entitled to east of the Mississipi ; and 
Spain, on her part, ceded Florida, and all that was claimed 
by that crown to the east or south-east of the same river. 

By this treaty the European title of Great Britain to all 
the country east of the Mississippi became complete; and 
it is rendered difficult by these cessions to point out, with 
precision, what portions of this territory were acquisitions 
from France and Spain, and what before properly belonged 
to England ; but to which the title was contested by one or 
both of those powers. 

Some prominent points, however, are more easily ascer- 
tained ; and from these it may be fairly concluded, that the 
greater part of territory included between the Mississippi, 
the great lakes, and the Alleghanies, belonged to France, 
and was regarded by Great Britain as acquisitions from that 
power at the conclusion of the war. 

For instance, the title of Great Britain to the province of 
Georgia, even on the sea coast, was disputed by both France 
and Spain ; and by the tenth article of the treaty of perpe- 
tual alliance between those powers concluded in 1743, it 
was agreed, that their majesties would take measures to 
compel the English to destroy that colony, "the establish- 
ment of which" (M i'; there asserted) " the English have not 



42 

been able to justify by any good title." While the British 
title to the Alliutic purl of this province was in doubt, the 
title of France to tlie interior thereof beyond the Apala- 
chian mountains was also denied by a few, but with as 
much reason as the British title to Savannah. Its settle- 
ment on the Mobile and in the Alabama territory had been 
established without complaint, and its right of possession 
was undisputed. The greater part of what now composes 
the states of Mississippi and Alabama, and probably the 
state of Tennessee, may be therefore regarded as part of 
the acquisitions from France in the war of 1756. The 
whole of the territory north of the Ohio, and east of the 
Mississippi, is to be ranked in the same description. 

The following facts prove this beyond controvet-sy. It 
must be borne in mind, that France had tirst explored this 
tract of country, and then held actual possession thereof. 

When the war was about commencing, England proposed 
to France the following boundary line between their Ameri- 
can possessions, viz ; " A line to be drawn from ihe junction 
of the river Des Boeufs with the Ohio at Venango up the 
river to Lake Erie, and in a right line from Venango to the 
last of the mountains of Virginia which descend towards the 
ocean."* By this arrangement England would have relin- 
quished all the territory now forming the states of Kentucky. 
Ohio, &:c., and part of Virginia and Pennsylvania. It was 
also proposed, that the aboriginals should occupy, as inde- 
pendent nations, the country between this line and the 
Mississippi, and that it should have nothing in common 
with the colonies. 

Afterwards, upon the failure of the French arms, that 
power proposed to cede Canada to England, and the dis- 
cussion turned upon the boundary between Canada and 

* 4th Secret Journal, 74; 



43 

Louisiana, to one of which colonies, France contended, 
all the western country appertained. The English minis- 
ter denied that proposition, and the French negociator 
rephed, that France did not pretend that what was not 
Canada was Louisiana, but demanded that (he intermediate 
nations between Canada and Louisiana, and Virginia and 
Louisiana, should be considered independent, and a barrier 
between the French and English.* 

Mr. Pitt admitted that those nations did form the true 
barrier between the provinces, but would not admit them 
to be within the limits ot Louisiana.! He maintained that 
a part of them were independent, a portion under the pro- 
tection of Great Britain, and that the crown had pur- 
chased a part of that country from the Six Nations. As to 
the course of the Ohio and the adjoining country, France 
contended, that it belonged to Louisiana ; and England that 
it was within the limits of (Canada, together with all the 
territory between the lakes, the Mississippi, the Ohio, and 
the Wabash, and appealed to the French maps to prove it.| 

Upon peace being concluded. Gen. Gage, the commander 
of the British forces in North America, issued a proclama- 
tion in February, 1764, in which he says, " Whereas by a 
treaty of peace, concluded at Paris, February 10, ITGS, 
the country of the Illinois has been ceded to his Britannic 
majesty, and the taking possession of the same by the 
troops of his majesty, though delayed, has been determined 
upon ;" he therefore exhorts the inhabitants to submission. § 

The preamble to the celebrated proclamation of 1763 

" 5th Entick's History, 170. 

t Note to Mr. Bussy, July 29, 1761. lb. 122, 

t lb. 171. 4th Secret Journal, 75. 

§ 1st United States' Laws, 607. 



also regards these territories as acquired by the treaty ot 
peace. (Vide note.)* 

It then proceeds to erect the provinces of Quebec, East 
and West Florida, within those countries ceded, and to add 
to Georgia " all the lands lying between the rivers Alatama- 
ha and St. Mary's." This augmented the old chartered 
limits of Georgia, according to the ordinary meaning of 
terms, to a line drawn from the head of the St. Mary's to 
the head of the Alatamaha. Still it did not comprehend all 
%vithin the present limits of Georgia, and none of the terri- 
tory now forming the states on the western border. The 
next year, however, (17G4,) James Wright was commis- 
sioned as governor "in and over the province of Georgia,'' 
described as follows : — 

'< Bounded on the north by the most northern stream of a river 
there commonly called Savannah, as far as the head of said 
river, and from thence westward as far as our territories extend ; 
on the east by the sea coast from the said river of Savannah to 
the; most soutliern stream of a certain other river called St. Mar}' ; 

* Proclamation of the king of Great Britain (of the 7th Octo^ 
her, 1763.J 

by the king, a proclamation. 
George R. 

Whereas we have taken into our royal consideration the 
extensive and valuable acquisitions in America, secured to our 
crown by the late definitive treaty of peace, concluded at Paris 
the lOth day of February last ; and being desirous that all our 
loving subjects, as well of our Kingdoms as of our colonies in 
America, may avail themselves, with all convenient speed, of 
the great benefits and advantages which must accrue therefrom 
to'their conamerce, manufactures, apd navigation. "t 

t 1st United States' Laws, 443 



45 

including all islands within twenty leagues of the coast, lying 
between the said rivers Savannah and St. Mary as far as 
the head thereof, and from thence westward as far as our terri- 
tories extend by the north boundary line of our provinces of 
East and West Florida."* 

By the proclamation of 1763, the boundary of East and 
West Florida was declared to be a line running from the 
source of St. Mary's river to the junction of the Flint river 
with the Apalachicola, thence up the latter river to the 31 st 
degree of north latitude, and thence due west to the Missis- 
sippi. By this description of the boundary of the Flondas, 
coupled with the commission to Governor Wright, it would 
seem, that all the territory acquired from France, between 
Florida and the 35th degree of north latitude, was annexed 
to Georgia, and intended to form a part of that province. 

In the same proclamation, however, there is a provision 
relating to the Indians and their lands, which materially 
diminishes the force of this conclusion. The crown, intend- 
ing to carry into effect the proposition, so often stated in 
the course of the previous negociation with France, de- 
clared in that document that it was 

" Just, and reasonable, and essential to our interest and the 
security of our colonies, that the several nations or tribes of 
Indians, with whom we are connected, and who live under 
our protection, should not be molested or disturbed in the pos- 
session of such parts of our dominions and territories as, not 
having been ceded to or purchased by us, are reserved to them 
or any of them, as their hunting grounds ; we do therefore, with 
the advice of our pi'ivy council, declare it to be our royal will 
and pleasure, that no governor or cammander-in-chief in any of 
our colonies of Quebec, East Florida, or West Florida, do pre- 
sume, upon any pretence whatever, to grant warrants of survey, 
or pass any patents for lands beyond the bounds of their respec- 
tive governments, as prescribed in their commissions ; as also, 
that no governor or commander-in-chief of our other colonies or 
plantations in America do presume, for the present, and until our 
further pleasure be known, to grant warrants of survey, or pass 

^ United States' Laws, 449. 



46 

patents for any lands beyond the heads or sources of any of tht. 
rivers which fidl into the Atlantic Ocean from the west or norih- 
Avest; or upon any lands whatever, which, not having been ceded 
to, or purchased by us as aforesaid, are reserved to the said 
Indians or any of them."* 

All the lands beyond the mountains, and not within the 
governments of Quebec or Flondas, were thus reserved un- 
der the sovereignty, protection and dominion of Great Bri- 
tain, for the use of the Indians ; and all persons were en- 
joined to remove from the same, and not to make any set- 
tlements within those limits for the future. 

By this arrangement, all the country above the north 
boundary of Florida, between the Mississippi and the Ap- 
palachians, as far north as a line drawn from Nipissim to 
the St. Lawrence, was reserved for the use of the aborigi- 
nals. At the same time, directions were given for the regu- 
lation of the Indian trade. In short, it was intended to con- 
fine the colonies to the sea-coa&t, and to keep them within 
the reach of the commerce of the mother country. This is 
so fully manifested by the reports of the board of trade, 
upon a petition submitted to it in 1G70, of a company 
wishing to establish a colony upon the Ohio, that a few ex- 
tracts will not appear out of place. 

" The proposition of forming inland colonics in America, is, 
we humbly conceive, entirely new: it adopts principles in re^ 
spect to American settlements, different from what have hitherto 
been the policy of this kingdom, and leads to a system which, if 
pursued through all its consequences, is, in the present state of 
that country, of the greatest importance. 

And first, with regard to the policy, we take leave to remind 
your lordships of that principle which was adopted by this Board, 
and apjjroved and confirmed by his majesty, immediately after 
the treaty of Paris, viz. the confining the western extent of set- 
tlements to such a distance from the sea-coast, as that those set- 
lleuiculs should lie mthin the reach of the trade and commerce of 
this kingdom, upon which the strength and riches of it depend: 

• fst United States' Laws. 446. 



47 

and also of the exercise of that authority and jurisdiction which 
was conceived to be necessary for the preservation of the colo- 
nies in a due subordination to, and dependence upon, the mother 
country, and these we apprehend to have been Uco capital ob- 
jects of his majesty'' s proclamation of the 7th of October, 1763, 
by which his majesty declares it to be his royal will and plea- 
sure to reserve, under his sovereignty, protection and dominion, 
for. the iise of the Indians, all the lands not included within the 
three new governments, the limits of which are described therein, 
as also all the lands and territories lying to the westward of the 
sources of the river which shall fall into the sea from the west 
and north-west, and by which all persons are forbid to make any 
purchase or settlement whatever, or to take possession of any of 
the lands above reserved, without special license for that pur- 
pose. 

The same principles of policy in reference to settlements at 
so great a distance from the sea-coast, as to be out of the reach of 
all advantageous intercourse with this kingdom, continue to exist in 
their full force and spirit ; and though various propositions for 
erecting new colonies in the interior parts of America, have been, 
in consequence of this extension of boundary line, submitted to 
the consideration of government, (particularly in that part of the 
country wherein are situated the lands now prayed for, with a 
view to that object,) yet the danger and disadvantages of com- 
plying with such proposals, have been so obvious as to defeat 
every attempt made for carrying them into execution." 

Keeping these maxinfjs of policy in view, and applying 
them to the alteration in the boundaries of Florida, upon 
the recommendation of the board of trade, about two 
months after the date of governor Wright's commission ; and 
the extension of the boundaries of Georgia by that docu- 
ment, to the Mississippi, will, to say the least, appear very 
problematical. 

Shortly after the proclamation of ''Q3, it was found that 
there were very considerable settlements upon the east bank 
of the Mississippi, as well as Mobile itself, above the Flori- 
da line, and therefore it was proposed by the board of 
trade. 



'^ That an instrument may pass under the great seal, (in like 
manner as was directed in the case of the extension of the south. 



l7iot the loest,] boundary of Georgia,) dieclaring that' the province 
of West Florida shall be bounded to the north by a line drawn from 
the mouth of the river Yasous, where it unites with the Missis- 
sippi ; due east to the river Apalachicola, by which we humbly 
conceive every material settlement depending upon West Florida^ 
Xvill be comprehended within the limits of that government."* 

This instrument was granted ; and on the Gth of June 
1764, the commission to the governor of Florida, so far as 
the boundaries of that province were therein prescribed, 
was revoked, and the boundaries above requested, granted. 
Why, we may ask, was not the commission to governor 
Wright, so far as the boundaries of Georgia were diminished, 
revoked, as well as the commission of the governor of Flori- 
da, whose boundaries were enlarged ? Why was an allusion 
made to the manner of the extension of the boundaries of 
Georgia, without suggesting that these settlements were 
within that province ? Why annex these settlements to 
Florida, except to conform to the policy adopted at the 
peace of 'G3, and thus to confine the colony of Georgia to 
the eastward of the Appalachian mountains, and to keep 
the colonists from infringing the Indian boundaries? 

This was the intention of the crown in granting those dif- 
ferent commissions ; and the colonists do not appear to have 
entertained a different opinion, until Virginia led the way, 
after the declaration of independence, by asserting her title 
to the western lands, in her constitution. The following 
proclamation of general Gage, dated 1772, aifords addition- 
al proof on this subject. 

" Whereas many persons, contrary to the positive orders of the 
king upon this subject, have undertaken to make settlements be- 
yond the boundaries fixed by the treaties made with the Indian 
nations, which boundaries ought to serve as a barrier between 
the whites and the said Indians; and a great number of persons 
have established themselves, particularly upon the river Ouaba- 
che, where they lead a wandering life, without government and 
without lawsj interrupting the free course of trade, destroying th* 

" 1st Vol. United States' Laws, 450. 



49 

game, and causing infinite disturbances in the country, which 
occasions a considerable injury to the affairs of the king, as well 
as those of the Indians; 

His majesty has been pleased to order, and by these presents 
orders are given, in the name of the king, to all those who have 
established themselves on the land, upon the Ouabache, whether 
at St. Vincent or elsewhere, to quit those countries instantly, 
and without delay, and to retire at their choice, into some one 
of the colonies of his majesty, where they will be received and 
treated as the other subjects of his majesty."* 

In this proclamation, a distinction is made between the 
British colonies and the western country, clearly showing 
that the general understanding was, that the provinces did 
comprehend that territory. 

If any doubt could exist as to the correctness of this pro- 
position, it must be resolved upon a reference to the cele- 
brated Quebec Act, passed in 1774,1 and the proceedings of 
the colonists thereupon. By this act, and the commission 
to governor Carleton,| all the territory between the western 
boundaries of Pennsylvania, Ohio, and the Mississippi, was 
annexed to the province of Quebec or Canada, because, as 
the preamble set forth, all that territory had been left with- 
out any civil government. 

This act, it is true, was afterwards enumerated in the de- 
claration of Independence, amotjg the injuries and usurpa- 
tions on the part of the British crown : not, however, be- 
cause the boundaries of Quebec were enlarged at the ex- 
pense of the older provinces ; but because, having es= 
tablished by this act, an arbitrary government in that pro- 
vince, the enlargement of its boundaries would render it a 
fit instrument for introducing the same into the other 
colonies. 

Is it to be believed, that the Continental congress would 
have omitted to enumerate among the causes of Reparation, 
so prominent a cause, as the arbitrary diminution of their 

* 1st United States' Laws, 608. 
+ 2d Remembrancer, Appendix. 38. j Fb. 2,. 

7 



50 

boundaries, iflhcy had believed themselves to be aggrieved 
in that point. That they did not regard the extension of 
Quebec as an encroachment upon their boundaries, is ma- 
nifest from the following proceedings. In their association, 
entered into October 20th, 1774, the Quebec act is descri- 
bed as " An act for extending the province of Quebec so 
as to border on the western frontiers of these colonies.^''* In 
their address to the colonists the next day, they say, " the 
limits of that province are extended, so as to comprehend 
those vast regions that lie adjoining to the northerly and 
Tvesterljj boundaries of those colonies^] In their address 
to the king, dated October 'Seth, 1774, the same descrip- 
tion is given to the addition to Quebec 4 and also in their 
address, dated July 8th, 1775.§ 

In these public papers are plainly developed the opinion 
then prevalent as to the character, propriety, and sove- 
reignty of the north-west territory. 

The conclusions to be drawn from the foregoing state- 
ments, are important in their bearings upon the proceedings 
during, and subsequent to, the revolution, and are as fol- 
lows : 

1st. That the European monarchs, when their subjects 
first undertook the settlement of the sea-coast of this con- 
tinent, were ignorant of its geography ; and gave charters 
of the most vague and inconsistent character, as to bounda- 
ries, to encourage them in that design. 

2dly. That the chief end proposed by those colonies was 
the civilization and conversion of the Indians. 

3dly. That the western boundary iirst assigned in the 
charters to Virginia, Massachusetts, Connecticut, Carolina, 
and Georgia, viz. the Pacilic, was prescribed, when Great 
Britain had not the right to grant, according to the Euro- 
pean doctrine, the territory to that extent. 

* 1st vol. Jauinal Old Congress, 23, W. and G. Ed. t lb. 37. 
$ lb. 47. ..^ lb. 107. 



4thly. That the Virginia grant of 1609, was resumed by 
(he crown ; that it was originally given to a corporation in 
England, which was legally dissolved ; that its linaits were 
indefinite, and inconsistent with the rights of other powers, 
and that if it had not been resumed, it would have been 
void, so far as it purported to give a claim to the western 
country. 

5thly. That the province of New-York, previous to the 
revolution, possessed jurisdiction over the country of the 
Six Nations ; and that those tribes claimed a great portion 
of the western territory. 

6thly. That the crown enjoyed, by virtue of its prero- 
gative, the right to alter, extend, and diminish, the char- 
tered limits of any of the provinces subject to the royal 
government ; and that that right was exercised towards the 
provinces of Virginia, Carolina, and Georgia, after the re- 
sumption of their charters, without remonstrance on the 
part of their inhabitants. 

7thly. That the British government and the colonists, 
before the war of "^56 regarded the territory westward of 
the Appalachian mountains as beyond the western limits of 
the provinces ; that the Illinois country, or that north of 
the Ohio, was in the possession of the French ; that the 
authority first exercised by the provincial governments 
over that country, was at the commencement of that war, 
in consequence of orders from the British ministers, and in 
the nature of a claim of title ; and that it was considered as 
wrested from France by (he arms of the colonists and 
Greai Britain. 

8thly. That upon peace being declared, the crown meant 
so to limit the provinces as to confine them to the sea- 
coast; and the proclamation of '63 was issued for the pur- 
pose of giving them a western boundary, and to reserve the 
territory beyond that line, to wit, the Appalachian moan-^ 



52 

tains, for the use of the Indians, under the sovereignty of 
Great Britain. 

9thly. That previous to the revolution, and after the 
colonies had been brought under a systematic government, 
the management of Indian affairs had belonged to the 
crown, and its immediate representatives. The New-Kng- 
land colonies indeed had regulated their own Indian rela- 
tibns by means of commissioners appointed for the confe- 
deracy of New-England, until the dissolution of their char- 
ters. This, however, was owing to their peculiar spirit, 
and that tone of independence which had prompted them 
to deny the supremacy of the mother country under Crom- 
well, and to proclaim their contempt of Charles's authority 
by the sound of the trumpet. This contumacy existed 
until the forfeiture of their charters, and their consolida- 
tion under Andross. Their joy at their deliverance from 
that tyranny by the Prince of Orange, induced them to 
submit to some modification of their government ; but 
previous to that moment, the Indian title to the greater 
part of the territory east of New-York had been extin- 
guished by conquest or purchase : and the aboriginals had 
become too insignificant in point of numbers to engage the 
attention of the royal government. As the charters in 
those provinces had been given to the colonists, the soil 
when the Indian title was extinguished, belonged to them, 
as a body politic. In the other provinces it was vested in 
the proprietors, or in the crown. Here the savages were 
more formidable, and the British government, as possessing 
the power of peace and war, and the treaty making power, 
assumed the management of the Indian affairs. This 
power was exercised in different ways. Some of the tribes 
which were on the point of dissolution, were subjected to 
the provincial governments. Others, more powerful, bor- 
dering on the frontier settlements, but within the acknow- 
ledged boundaries of the provinces, were placed under the. 



53 

special superintendance of the several royal governors. 
The Six Nations, which then was the most important body of 
natives, not only from their numbers, but from their tribu- 
taries, allies, and the extent of their territory, were under 
the protection and jurisdiction of New-York ; and the 
other tribes, inhabiting that vast wilderness, west of the 
Appallachian mountains, were under the superintendance 
of the British crown ; which treated with, and conveyed 
its intentions to them, through the immediate represen- 
tatives of the sovereign in America ; sometimes through 
the governors of New- York, Virginia, Carolina, and Geor- 
gia ; and sometimes through the commander-in-chief of the 
regular troops. 

IGthly. That at the commencement of the revolution, 
the colonies did not claim, as within their provincial limits, 
any part of the old north-west territory, which had been 
previously annexed to the province of Quebec by the 
crown, in the exercise of an unquestioned prerogative. 



Q'k 



CHAPTER III. 



Pormalion of the Confederacy — Adoplion of State Consti- 
tutions. — Articles of Confederation. — Limits of Stales. — 
Western Lands. — Indians. — Obstacles to the Adoption of 
Articles. — Cessio7is by States. — Treaty of Peace. — Creeks. 
State Treaties. — Federal Constitution. — Yazoo Contract. — 
Agreement of 1 802. — Construction of that Agreement. 



Having in the preceding chapter endeavoured to set 
forth in a succinct manner the condition of the British pro- 
vinces, and the nature of the relations subsisting between 
them, the royal government, and the aboriginals, previous 
to the American revolution, it is now necessary to direct 
our attention to that interesting period of our history. 

After the conclusion of the war of 1763, the British 
ministers seem to have adopted a more rigorous and uni- 
form system of government for the North American colonies, 
than they had before been subjected to. As this ministe- 
rial project was regarded by the Americans, (to use the 
words of the eloquent Burke,) "• as a system of perfect un- 
compensated slavery, in which the restraints of an universal 
internal and external monopoly were joined with an uni- 
versal internal and external taxation ;" they prepared to 
iesist the designs of the mother country with the spirit of 
freemen. This determination was not a transient feeling ; 
but a deep, enduring sentiment, pervading the whole mass 
of society ; supplying the place of laws and goverruneiit, 
and inducing the colonists to place their persons and for- 
liines upon the hazard of successful resistance. In order 



^5 

to concentrate their forces, and to act in their common 
cause as one people, the leaders of the opposition were 
invested with power, by the primary assemblies, to repre- 
sent the different provinces in a continental congress, and 
to act in their behalf, for the purpose of procuring a remedy 
for the evils with which they were threatened. 

The first meeting of this body was held September 5, 
1774 ; and in that body twelve of the colonies were repre- 
sented by the consent of the people. In this congress it 
was determined to adopt such measures of resistance to the 
designs of Great Britain as did not necessarily imply a 
. hostile disposition. An agreement neither to import nor 
consume British goods, nor to export produce to Great 
Britain, was entered into by the delegates for themselves 
and their constituents, and remonstrance and petition 
employed to avert the crisis which was manifestly ap- 
proaching. In these acts, and the pledges which were 
mutually given, both by the delegates of the several colo- 
nies, and by the people in their primary assemblies, is to 
be seen the germ of the American republic. 

The next year, on the ever memorable 19th of April, the 
inhabitants of Lexington and Concord, in accordance with 
public sentiment, and (it may be said) the tacit general 
understanding of the colonists, in resisting the British 
troops, commenced hostilities, and thus put the respective 
rights and claims of the two countries upon the arbitration 
of war. 

On the 10th of May, the delegates of the same provinces 
met again in congress, and formally made the causeof the pro- 
vincial troops round Boston, the cause of the colonies. They 
acknowledged it to be their own, and prepared to prosecute 
it with the same spirit with which it had been commenced. 
Steps were taken to place the colonies in a state of defence j 
rules and reijuhU-ons framed for the government of the 
troops ; measures adopted to expel the enemy from the 



56 

continent ; a large force assigned for the siege of Boston , 
bills of credit, to the amount of $2,000,000, issued, and the 
faith of the twelve colonies pledged for their redemption ; 
negociations commenced with the Indians, to engage their 
friendship and neutrality ; and a resolution passed " prohi- 
biting all intercourse with Georgia, except St. John's 
parish, (which had then renounced all connexion with the 
rest of the province,) Canada, Nova Scotia, Newfoundland, 
the Island of St, John, and East and West Florida, as de- 
pendencies of the common enemy, until the further order 
of congress." 

In short, congress assumed, in behalf of the country, the 
character of an independent nation, to effect certain spe- 
cified objects ; and the colonists ratified their proceedings, 
and conferred upon that body, by the resolutions passed in 
their primary assemblies, the powers of national govern- 
ment, so far as they should be required for the accomplish- 
ment of the objects proposed. (See Appendix B.) These 
were, by negociation or force, to bring the mother coun- 
try to a sense of what was due to the colonies, and to 
settle the existing difficulties upon a permanent and equi- 
table footing. 

About three months after the commencement of hostili- 
ties, Georgia acceded to the confederation, and, of course, 
made herself a party to the proceedings, views, and respon- 
sibilities of the other provinces. 

In the course of the contest its character changed. The 
more full developement of the ultimate designs of the Bri- 
tish government had convinced the colonists that there 
could be no safety in any connexion with England, and 
they resolved upon separation. On the fourth of July, 
177G, by an unanimous vote of the continental congress, 
" these united colonics were declared to be free and inde- 
pendent states," and all political connexion between them 
and Great Britain to be totally dissolved. This declara- 



57 

tion was only a public acknowledgment and justification of 
the leeoiiUion, which had been previously adopted. Nearly 
two months previous to that period, they had manifested 
their determination, by recommending to the several pro- 
vinces to form new civil governments. It would be diffi- 
cult, among the^many acts of resistance to the royal autho- 
rity, to point out in the proceedings of the leaders of the 
revolution, the lirst act by which they first indicated their 
determination to be a separate nation ; but this manifesto 
gave the most satisfactory evidence of their resolution, 
and pledged all the colonies to its execution. 

By this instrument, and the subsequent proceedings there- 
on, the American people declared themselves to be an inde- 
pendent nation, then at war with Great Britain; but as such, 
the whole were responsible to all the world, for the acts of 
the citizens of each and every of the colonies. They were 
free and independent, not as isolated states ; but as the 
Umted States of America; and as such only could they 
be regarded by mankind. 

As between themselves, they were bound together by their 
acts and their declarations ; although the terms and condi- 
tions of their union were not properly defined. They com- 
prehended, however, all that was necessary to prosecute the 
war to a successful result. To this they had pledged them- 
selves ; and, however congress might have been disposed 
to conciliate and to persuade the several states, instead of 
resorting to coercive measures ; no doubt can be entertained, 
that a refusal to comply with its requisitions upon any of 
the states for the public service, was a violation of faith, and 
that a withdrawal from the confederacy by one of its mem- 
bers, v»ould have been a good cause of war, and have justi- 
fied the invasion and conquest of that state by the rest of the 
union. The force of circumstances had formed them ivio 
a nation, one and indivisible, and instituted a general go- 
vernment, long before the state constitutions, or the articles 

8 



58 

of confederation, were framed. As such they were re- 
garded by other civilized nations; and in that character, 
anterior to the adoption of any federal constitution, or 
articles of confederation, they had ei»tered into a treaty of 
commerce and an otTensive and defensive alliance with 
France; and had undertaken, in conjunction with that king- 
dom, important enterprises, which pre-supposed the exis- 
tence of a national government, and that that government 
possessed certain extensive powers over the people of the 
United States. (Vide Appendix B.) 

With Great Britain, they were in a state of war, striving 
to expe! lier troops from the continent, and to appropriate 
for themselves as much of it, as they could gain by force. 
With this view expeditions were undertaken against the 
several British posts within the thirteen states, in Canada, 
the North- West Territory, and St. Augustine in Florida. 

As to the other European powers, they were but one 
people, and known either as the United States of An)erlca, 
or as tiic insurgent colonies of Gieat Britain. While among 
themscives they were communities formerly distinct for all 
the purposes of local legislation ; though subject in some 
matters, and especially in all matters relating to Indian 
tribes and their territory, to the legislation of the mother 
coimtry and the royal authority ; but now united by com- 
mon wrongs and common apprehensions in one cause, and 
obliged to provide new political institutions to meet the 
exigencies of their novel situation. 

This subject early engaged the attention of the actors in 
the revolution ; and the novel spectacle was presented of a 
people contending for freedom and independence with a 
power, whose fleets and armies threatened their extermina- 
tion, and occupied with arms in their hands in laying the 
foundations and erecting the superstructure of their politi- 
cal institutions. Since the time when Nehemiah rebuilt 
Jerusalem, there had not been seen a community, of whom 



59 

it could be so emphatically said ; " every person with one of 
his hands wrought in the work, and with the other hand 
held a weapon." 

Although in the first burst of resistance, the place of ci- 
vil government was supplied by public sentiment, and the 
powers of the Provincial and Continental Congresses ; 
still, the necessity of adopting a more regular, and better 
defined political system, was admitted by all. Congress, 
acting upon this conviction, on the 15th of May, 1776, re- 
commended to the people, of the several colonies " to adopt' 
such government as should, in the opinion of the represen- 
tatives of the people, best conduce to the happiness and 
safety of tiieir constituents in particular, and America in 
general." * 

Pursuant to that recommendation, the local conventions 
proceeded to prepare constitutions for each of the several 
colonies ; and their delegates in the continental congress 
endeavoured to frame an acceptable system of government 
for the confederacy, by which the very indefinite powers 
possessed by that body, might be distinctly marked out, and 
the respective rights and obligations of the general and lo- 
cal governments properly defined. 

The inhabitants of the old British colonies, thus proceed- 
ed simultaneously to institute the political system, under 
which they were to exist as an independent community, 
united for some purposes, and separated for others. The 
local governments being more simple in their nature, and 
less extensive in their operation, were more readily agreed 
upon, and earlier established ; but the intention of forming 
a national government was so early and so universally a- 
dopted, that it may be safely asserted, that the American 
people never entertained the idea of existing in independent 
and separate states. 

They meant to be one and indivisible ;and the only diffi- 

* 1st Journal Old Congress, 339, 345. 



60 

\:ulty was bow (o a pportion the pov^ ers of government, so ai 
to give to congress such powers, as would enable it to repre- 
sent and protect the national interests, without encroaching 
apon the state authorities, to whom was confided the care 
of the local interests. Instead, therefore, of regarding the 
general government as formed bj concessions on the part 
of the state governments : it is to be considered as equallj 
the establishment of the people, who for the sake of con- 
venience after framing its constitution in a general congress, 
expressed their assent to its provisions through their local 
assemblies, and apportioned to each its political powers, by 
the constitutions provided to guide those, to whose hands 
the administration of the government was confided. 

This apportionment, however, oaly referred to what then 
existed, and not to what was subsequently acquired by the 
thirteen states in their confederated character. For instance, 
if any thing had been acquired by conquest from Great-Bri- 
tain as militar}- monitions, or a province not acceding to the 
union, or uncultivated and unappropriated territory, it is 
clear that such acquisition would have belonged to the con- 
federacy, and not to the states separately. It would have 
constituted a common fund, to be appropriated for the pro- 
secution of the war, the reimbursement of the public cre- 
ditors, or in any other way for the general benefit. What 
belonged to the colonists, either individually or as pro- 
vincial communities, was apportionedat the commencement 
of the revolution among the several government? ; but all 
acquisitions by conquest necessarily fell under the jurisdic- 
tion of the national government. As the property of the 
crown, it became the right of the opponent of the crown; 
as an acquisition in war, it was vested in that party which 
carried on the war. This opponent of the crown was the 
American people, represented in continental congress. 
The quarrel was theirs, and theirs only, and to them, in their 
collective capacity, belonged the acquisitions and results 
ef that war. 



61 

It was soon, however, foreseen, that in case of success, it 
would be difficult to define the boundary, between what was 
conq(jered from Great Britain, and what hadpreviou;!y be- 
longed to the colonists as distinct connmunities. This question 
was intimatel} connected with another, touching the Indian 
title to the territory occupied by them and the righ; of pre- 
emption of that title. This right of preemption, accord- 
ing to the English doctrine, belonged to the crown ; ex- 
cepting in the states of Massachusetts, Rhode-Island and 
Connecticut, where it was vested in the colonists, and in 
Pennsylvania and Maryland, which were proprietary go- 
vernments. When the authority of the crown was tluown 
off, it was natural and proper that those aborigines who 
were surrounded by the white population, ai.d within the 
actual jurisdiction of the local legislatures, should be confi- 
ded to their superintendance. Without any of the attributes 
of independence ; unable to protect themselves from their 
neighbours, and even from their own passions; and almost 
on the point of dissolution, as most of the tribes surround- 
ed by the whites soon become, it was humane and neces- 
sary, that those who were able, should assume the power 
and right of protecting and governing them. They could 
not be regarded as fit subjects for the care of a government 
instituted for national purposes ; but fornied a part of the 
several communities in which they resided, as tlie gypsies 
formerly made a part of many of the European states. 

On the other hand, those tribes which did not come in 
contact, with even the frontier settlements of the colonists, 
as naturally fell within the jurisdiction of the general go- 
vernment. They were independent in fact ; ujider the go- 
vernment of (heir own chiefs and national councils ; and at 
the formation of our government, so far from claiming j^ny 
authority over them ; great solicitude was manifested, and 
great pams taken b) the public authorities to conciliate 
them, atid to preserve their friendship or neutrality in the 
impending contest. 



62 

Other tribes, almost in contact with the white settlements, 
without being enveloped by them, could not be so distinctly 
classed. They were too powerful and too well organised 
to be ranked with the former as under no government of 
their own, and still they were so connected with the colo- 
nists and the crown by treaties, as to be considered partly 
dependent. 

The same state of things existed as to the western boun- 
daries. With the exception of Maryland, Pennsylvania, 
Delaware, New- Jersey, and Rhode- Island, the chartered 
limits of the provinces were very indefinite. So far as the 
states had any existence independent of the royal charters, 
they were communities confined to the eastern side of the 
Appalachian mountains. To the extent of their continuous 
settlements, and, indeed, to the utmost limits of their usual 
and actual jurisdiction, no doubt could be entertained as to 
the right of the several states. As little could exist as to 
the right of the confederacy to that territory, which had 
been placed beyond the provincial limits by the crown, and 
which, consequently, was an acquisition, by war, from Great 
Britain. It was difficult to define the extent of these respec- 
tive rights ; and this difficulty was increased by the conflict- 
ing claims of the different states, as to their own boundaries. 
Another question was also presented, by the nature of the 
Indian title, and the doctrine that notwithstanding this title, 
the ultimate dominion, or right of preemption, belonged to 
the crown. Within the acknowledged limits of many of 
the states, the Indians still claimed and occupied large 
tracts of territory, to which their title had not been ex- 
tinguished. 

Mere, again, were conflicting claims. The confederacy 
contended, that all this was royal property, and therefore 
became vested in the antagonist of the crown. The states 
insisted that they possessed the sovereignty over the soil, 
and that that carried with it the property. These compli- 



63 

cated difficulties left no other alternative, than to arrange 
the matters by compromise and negotiation. 

Under these circumstances, the local conventions and 
provincial congresses proceeded to institute state govern- 
ments, and the continental congress to frame articles of 
confederation, for the direction of the general government. 
Some of the states, as Rhode-Island and Connecticut, being 
well satisfied with their chartered governments, which were 
popular, and entirely independent of the crown, began to 
exist as states, under their old patents, without alteration. 
The others instituted new governments at diflferent periods^ 
as opportunity offered. 

Massachusetts and New Hampshire, " took up govern- 
ment," as they called it, in the early part of the year 1 775 ; 
and afterwards, when the enemy was expelled from their 
borders, adopted more regular constitutions. 

Massachusetts in 1780, and New Hampshire in 1783. 

New Jersey adopted her constitution July 2d, 1776. 

Virginia, July 5th, 1776. 

Maryland, August 14th, 1776. 

Pennsylvania, September 28th, 1776. 

North Carolina, December 18th, 1776. 

New York, April 20th, 1 777. 

Georgia, February 5th, 1777. 

South Carolina. 

Delaware, September 20th, 1776. 

In all these constitutions there is a direct reference to the 
authority of congress. In the constitution of New- Jersey, 
it is called " the supreme council of the American colonies," 
and in most of the others, the recommendation of that body 
is spoken of as the motive, which induced the formation of 
state governments. 

Whilst the local conventions were thus engaged, the 
continenial congress was preparing a constitution for the 
guidance of those, who administered the general govern- 
ment. 



In that body, as the supreme council of the nation, the 
questions above-mcalioued naturally became the subjects of 
discussion. 

The regulation of all Indian affairs was, however, thought 
more peculiarly to belong to congress, and less objection 
was made to its claim to that prerogative, than in the mat- 
ter of boundaries. 

Even in the provisional government proposed by Dr. 
Franklin, July 21st, 1775, which was to last only, until an 
honorable reconciliation could be effected with Great-Bri- 
tain, there were articles prohibiting any colony from engaging 
in war with an Indian nation without the consent of con- 
gress, and securing to the Indians their lands, and appoint- 
ing agents to reside among them, and to supply their wants 
at the general expense. It was also provided, that no pri-- 
vatc nor colony purchases should be made of the Indians ; 
but that all purchases should be made by congress for the 
benefit of the united colonies.* 

These articles were not adopted, from the conviction, 
that if an arrangement were speedily made, it would not 
be necessary to define the powers of the general govern- 
ment ; and if not, then, another and more decisive course 
ought to be taken. 

In the mean time congress proceeded to direct and man- 
age our relations with the Indians, as necessarily within the 
jurisdiction of the national government. 

The attention of that body was first directed to this sub- 
ject by a petition from the inhabitants of the western part 
of Virginia, June 1st, 1775, intimating their fears of a rup- 
ture with the savages, on account of Lord Dunmore's con- 
duct't 

On the 1st of the succeeding month, congress resolved, 
that if the agents of Great Britain should induce the Indians 
to attack the Americans, " the colonists ought to avoil them- 
selves of an alliance wilh&uch Indian nations as will enter 

* 1st Secret Journal, 271. t 1st Journal Old Congress, 78. 



65 

into the same," to oppose the British troops.* It then pro- 
ceeded to appoint committees to prepare talks to the seve- 
ral tribes for engaging the continuance of their friendship 
and neutrality during the contest.* 

Three departments were created July 12th, for the re- 
gulation of the Indian affairs, and they were authorised 
" to treat with the different tribes in the name, and on be- 
half of the united colonies.'"! 

In short, congress assumed the whole power which the 
crown had hitherto possessed over the Indian relations. 

A treaty was made with the Six Nations in 1775. 

The beginning of the next year provision was made 
for the permanent supply of the Indians with goods at the 
public expense ; and all persons were prohibited from trading 
with them without a license from the Indian commissioners.! 

A few days afterwards, measures were adopted to pro- 
mote the civilization and conversion of the aboriginals,§ 
and a resolution was passed prohibiting their employment 
in the continental armies, " without the formal consent of 
the national councils of their respective tribes, assembled 
in their customary mode."|| 

In the n)onth of May succeeding, treaties were ordered 
to be made with the different tribes as soon as possible ;"1i 
and on the 17th of September, 1778, after the framing of 
the articles of confederation, but long before their final 
adoption, a treaty was made with the Delaware nation, by 
which it was agreed " to invite any other tribes who have 
been friends to the interests of the United States, to join the 
present confederation, and to form a state, whereof the 
Delaware nation shall be the head, and have a representa- 
tive in congress. "tt 

This convention, made whilst the states were actually 

* 1st Journal Old Congress, 83. t lb. 113. i lb. 249. 

i lb. 266. II lb. 281. U lb. 241. n 1st U. S. Laws. .304. 

$ 



66 

ratifying the articles of confederation, is a contemporaneous 
construction of its provisions relating to the Indians, deserv- 
ing particular notice. It shows, that the general government 
exercised the then unquestioned prerogative, of defining 
the limits, guarantying the possessions, and establishing the 
condition of Indian tribes within the undisputed limits of a 
state ; even to the extent of acknowledging their indepen- 
dence, and admitting them into the Union. (See Appen- 
dix C.) 

This treaty was, it is true, made previous to the final 
ratification of the articles of confederation ; but it was at the 
moment when that ratification was daily expected, and ten 
states had already assented to them. Those articles enu- 
merated, among the power of congress that, of" regulating 
the trade and managing all affairs with the Indians not 
members of any state ; provided that the legislative right 
of any state within its own limits be not infringed or 
violated." 

This very guarded article was adopted after much deli- 
beration, and was finally the result of compromise. In the 
first draft of the articles of confederation, there was no 
limitation, or exception to the power of congress. The 
sentence stood, " managing all affairs with the Indians."* 

In the committee of the whole the words "not members 
of any of the states"! were added, and it was reported in 
that manner to congress. 

In that body a motion was made, October 27, 1777, to 
strike out this addition, and to insert in its stead " not 
residing within the limits of any of the United States." 

Another motion was made so as to read " managing all 
affairs relative to peace and war with all Indians not mem- 
bers of any particular stale ; and regulating the trade with 
such tribes as are not resident within such limits, where- 
in a particular state claims, and actually exercises juris- 

• Seeret Journal, 1st vol. 281. t lb. 294. 



67 

diction."* The next day these proposed amendments 
were withdrawn, and the one introduced which now appears 
in the articles of confederation. 

Under these circumstances, the treatywith the Dela- 
wares was made, and although the states at that time were 
engaged in the discussion of the articles, and these questions 
and distinctions were fresh in the pubic mind, no objec- 
tion appears to have been made to the right of the general 
government, to make such a treaty, even then or at the 
time of their final ratification. Indeed, from the time when 
these articles were completed in congress, November 15th, 
1777, until their ratification, March 1st, 1781, there seems 
to have been no dispute to the right of the general govern- 
ment, to the management of the Indian relations, and the 
state governments themselves often applied to congress for 
directions how to proceed, with regard to such tribes as 
were within their own limits. The assembly of Pennsylva- 
nia sent a committee to congress in May, 1777, for advice 
concerning the intrusions upon the Indian lands in that 
state ; and congress resolved, (which was the method of 
legislation by that body,) that measures ought to be taken 
to quiet the Indians, by assuring them that they should have 
full satisfaction, by the removal of the intruders, or by com= 
pensation for the soil, at their option.! 

So, too, when the government of Georgia, in October of 
that same year, made the same application on account of 
" the danger of an Indian war, being provoked by the wan- 
tonness and indiscretion of several persons in that state^"*^ 
congress took the matter into consideration, and authorised 
the state to take the necessary steps to avert the impending 
evil. I 

More decisive measures were taken in relation to the In- 



* Secret Journal, 1st vol. 323. 
1 2d Journal Old Congress, 142. % lb. 297. 



68 

dians residing in the north-west territory ; and other ques- 
tions arose subsequent to the adoption of the articles of 
confederation ; but as these are connected with the question 
concerning the linnits of the provinces, it becomes necessary 
to recur to the history of that dispute. 

In the last chapter, the titles of the several provinces to 
their boundaries were set forth in detail, and the different 
principles applicable to their various claims discussed. 
These claims to territory were not all set up at the com- 
mencement of the contest; but were insisted upon, after- 
wards, when the nature of our government became more 
fully developed. In instituting the state government gene- 
rally, no mention was made of the extent of the several 
states : but they were referred to as they had previously 
existed when provinces. What their precise boundaries 
were, has been shown to have been very uncertain. The 
constitutions, therefore, which were then framed, were re- 
gulations for the conduct of the governors, rather than 
claims of territory — political instruments, and not descrip- 
tions of boundaries. Two states, however, departed from 
this rule, and thereby gave a rise to a question, which re- 
tarded the adoption of the articles of confederacy for nearly 
four years ; and, indeed, endangered the existence of the 
republic. 

Virginia, in her constitution, inserted the following pro- 
vision : 

" The territories, contained within the charters, erecting the 
colonies of Maryland, Pennsylvania, North and South Carolina, 
are hereby ceded, released, and forever confirmed to the people 
of these colonies respectively, with all the rights of property, ju- 
risdiction, and government, and all other rights whatsoever, 
which might, at any time heretofore, have been claimed by Vir- 
ginia, except the free navigation and use of the rivers Potomaque 
and Pokomoke, with the properly of the Virginia shores and 
strands, bordering on either of the said rivers, and tdl improve- 
ments which have been, or shall be made thereon. The western 
and northern extent of Virginia shall, in all other respects, stand, 



69 

as fixed by the charter of king James I. in the year cstiojpousand 
six hundred and nine, and by the public treaty of peace, between 
the courts of Britain and France, in the year one thousand seven 
hundred and sixty-three; unless, by act of this legislature, one 
or more governments be established westward of the Alleghany 
mountains. And no purchases of lands shall be made of the 
Indian natives, but on behalf of the public, by authority of the 
general assembly," 

This was a vague assertion of title, and, in that moment 
of difficulty and distress, was not commented upon, pos- 
sibly, because it was supposed to be made rather against 
Great Britain, than against the confederacy. 

Shortly after, North-Carolina followed this example, and 
without noticing the formal cession made in the constitu- 
tion of Virginia, of the territory within the Carolina grant, 
set forth her claim in the following manner : 

" All the territory, seas, waters and harbours, with their ap- 
purtenances, lying between the line above described, and the 
southern line of the state of Virginia, which begins on the sea- 
shore, in thirty-six degrees thirty minutes north latitude, and from 
thence runs west, agreeable to the charter of king Charles, to the 
late proprietors of Carolina, are the right and property of the peo- 
ple of this state, to be held by them in sovereignty : any partial 
line, without the consent of the legislature of this slate, at any 
time thereafter directed or laid out, in any wise notwithstanding; 
provided always, that^'this declaration of right shall not prejudice 
any nation or nations of Indians, from enjoying such hunting 
grounds as may have been, or hereafter shall be secured to them, 
by any former or future legislature of this state : — And Provided 
also, that it shall not be construed so as to prevent the establish- 
ment of one or more governments westward of this state, by con- 
sent of the legislature. 

The other states, whose boundaries were indefinite, viz : 
Massachusetts, New-York, South Carolina, and Georgia, 
inserted no description of their limits in their constitutions. 
In these assertions of territorial ughts originated the diffi- 
culties, which so long prevented the ratification of the old 
federal government. 

The wise men who framed the articles of confederation, 



7© 

eonvin1'"'"c ' the difficulty of then making any satisfactory 
arrangement, between the confederacy and the several 
states, as to the dividing hnes between their respective ter- 
ritories, concluded to postpone the business to a more con- 
venient season, and to leave all parties in possession of 
their rights. This resolution was adopted upon the most 
deliberate conviction tliat no amicable adjustment could 
then be made ; and after repeated attempts to devise some 
provision relating thereto, which would be acceptable to all. 
It was proposed in the original draft of the articles, that 
congress should have the power to limit and ascertain the 
boundaries of those colonies, which claimed to the south- 
sea, to erect the territory into new states. This clause was 
struck out in the committee of the whole, and though 
geveral other eiforts were made to settle the boundaries of 
those states, or to fix upon some mode, by which they might 
be defined, they all proved abortive,* and the articles 
were framed without any provision upon the subject. 

This omission was intentional ; and upon mature consi- 
deration, it being fully understood that the rights of neither 
party were atfected by it. Another attempt was afterwards 
made by the delegates of Maryland, in pursuance of instruc- 
tions from their constituents, to appoint commissioners 
to determine this dispute. Upon this final trial, the vote 
stood as follows, June 23, 1778 : — 

Ay. No. 

Rhode-Island, New-Hampshire, 

New-Jersey, Massachusetts, 

Pennsylvania, Connecticut, 

Delaware, Virginia, 

Maryland, South Carolina, 

Georgia, 
New-York, divided. t 

* Ut Secret Journal, 312. t lb. 358. 



71 

This equal division upon so important a question, pro' 
duce'^ a conviction that an amicable adjustment of these 
clain must be left to another generation. 

Notwithstanding this willingness to postpone the settle- 
ment of these difficulties to a more favourable moment; no 
disposition was manifested to yield the rights of the confe- 
deracy to any of its members. 

In 1 779, the government of Virginia, disregarding this de- 
termination of the national legislature ; but acting in the spirit 
of the above extract from her constitution, opened an office 
for the sale of these unappropriated lands. The subject 
was immediately brought before congress, and the following 
resolution was introduced, and adopted by all the states 
then present, except Virginia and North-Carolina, in the 
negative, New- York divided.* " Whereas the appropria- 
tion of vacant lands by the several states, during the conti- 
nuance of the war, will, in the opinion of congress, be at- 
tended with great mischiefs ; therefore, 

Resolved, that if it be earnestly recommended to the 
stale of Virginia, to reconsider their late act of assembly, 
for opening their land office ; and that it be recommended 
to the saio^ate, and all other states similarly circumstan- 
ced, to forbear settling or issuing warrants for unappropria- 
ted lands, or granting the same during the continuance of 
the present war." 

Congress did not confine itself merely to remonstrance; 
but ordered Col. Broadhead, to be stationed in the western 
country with a competent force to prevent intrusions upon 
that territory. In the execution of these orders, that officer in 
the month of October, 1779, being informed that certain 
inhabitants of Virginia had crossed the Ohio, and made im- 
provements on the Indian lands, from the river Muskingum 
to fort Mcintosh, and thirty miles up the Ohio, ordered them 

* 3d Journal, Old Congress, 385 



to be apprehended as trespassers and destroyed their huts.* 
Information oi" this was immediately given to the governor 
of Virginia, and the next year. April ISth. congress resolv- 
ed, that Colonel Broadbead should be supported in any 
act or order which the nature of his service had made, or 
should make necessary. t This assertion of title on the 
part of Virginia had now attracted the attention of some 
of the other states, and they insisted on an express stipula- 
tion in the articles of confederation, by which they might 
be eflectually secured from these unreasonable claims. 

Rhode-Island, New-Jersey. Delaware, and Maryland, in 
particular, protested against her claims to the western territo- 
ry, and proposed amendments similar to those offered preri- 
ously in congress. These amendments were disposed of 
in the same manner as the former, and the three first states, 
induced by the pressure of the war. acceded to the 
confederacy; but Maryland still refused, and. in May 21. 
1779, her delegates presented to congress instructions 
from her legislature refuting the extravagant pretensions of 
Virsinia. and directing them not to sign the articles of 
confederation, until they were relinquished. ^^ ide Ap- 
pendix D.) 

Maryland having apparently adopted this resolution with 
a determination not to recede from it ; Virginia authorised 
ber delegates to ratify the articles, although some of the 
states should refuse to join the confederacy: andConnecticat 
followed this example. In this manner the Union was 
brought to the brink of destruction — divided into two parts. 
by the determination of the most central state not to ac- 
accede to the articles of confederation, so long as Virginia 
adhered to this claim: and Virginia pertinaciously insisting 
upon what she regarded as her rights : whilst the enemies of 
the country were exalting in the disorganization and distrac- 

* 3d Joaml (Md Congress, 866. t lb. 44&. 



lion prevailing in the stale?, and fondij expecting that ihe 
confec^eracy was on the point of dissolution. 

At this critical momeut. the state of Xew-York led ihe 
way to the removal of the difficulties, which prevented the 
ratification of the articles of confederation, by passing an 
act authorizing her delegates to limit and restrict the bonn- 
daries of the western part of the state, in such manner as 
they should think proper. To this step the people of that 
state were prompted, solely by a desire •• to manifest their 
regard tbr their sister states, promote the general interest 
and security, and, more especially, to accelerate the fede- 
ral alliance, removing, as far as it depends upon them, the 
sole impediment to its final accomplishmeiit." The extent 
and value of this cession thus Ireely proffered to congress, 
will appear by a report of a committee, May Ist, 1782, to 
whom the claims of Vii^inia were referred. 

Virginia, on her part, shortly after the instructions from 
the Maryland assembly were entered upon the journal of 
congress, presented a remonstrance of her assembly in be- 
half of her title, which was referred, together with those 
instructions and the act of New-York, to a committee of 
congress, which made the following report to that body, 
Sept. 6lh, 17S0: 

'•' That having duly considered the several matters to tliem 
submilied, they conceive it unuecessary to examine inu the 
merits or poUcy of the instructions or declarauon of the general 
assembly of Maryland, or of the remonstrances of the eeueral 
assembly of \ irgiuia, as they involve quesuons, the discussion 
of which was declined on mature deliberation, when the articles 
of coiitederation were debated ; nor. in the opinion of the com- 
mittee, can such questions be now revived with any prospect of 
conciliation ; that it appears more advisable to press upon these 
states which can remove the embarrassments respeciing the 
western country, a liberal surrender of a portion of lueir territo- 
rial claims, since they cannot be preserved entire without endan- 
gering the stability oi the general confederacy : to remilid tliem 
how indispensably necessary it is to esiabUsh ihe federal union 
on a fixed and permanent basis, and on principles acceptable to 

10 



74 

all its respective members ; how essential to public credit and 
confidence, io the support of our army, to the vigour of our 
councils and success of our measures, to our tranquillity at home, 
our reputation abroad, to our very existence as a free, sovereign, 
and niuependent people ; thai they are fully persuaded the wis- 
dom of the respective legislatures will lead them to a full and 
impartial consideration of a subject so interesting to the United 
States, and so necessary to ihe happy establishment of the iede- 
ral union ; that they are confirmed in these expectations by a 
vie\v of the before-mentioned act of the legislature of New- 
York, submitted to theli- consideration; that this act is expressly 
calculated to acceleiate the federal alliance^ by removing, as far 
as depends on that stale, the impediment arising from the western 
country, and for that purpose to yield up a portion of territorial 
claim for the general benelit ; Whereupon, 

^^ Resolved, That copies of the several papers referred to the 
committee be transmitted, with a copy of the report, to the legis- 
latures of the several states, and that it be earnestly recom- 
mended to those states, wlio have claims to the western country, 
to pass such laws, and give their delegates in Congress such 
powers, as may effectually remove the only obstacle to a tmal 
ratification of the articles of confederation; and that the legis- 
lature of Maryland be earnestly rersnested to authorize their 
delegates in Congress to subscribe ihe iaid articles.'"* 

On the 10th ofOctobfT. 1780, this recommendation was 
reiterated in the following shape : 

Resolved, That the unappropriated lands that may be ceded 
or relinquished to the Ihiited States, by any particular state, 
pursuant to the recommendation of Congress of the Gth day of 
September last, shall be disposed of for the cf)n!mon benefit of 
the United States, and be settled and formed into distinct repub- 
lican states, which shall become members of die federal union, 
and have the same rights of sovereignty, freedom and indepen- 
dence, as the other states : that each state whicli shall be so 
formed shall contain a suitable extent of territory, not less than 
100 nor more than 150 miles square, or as near thereto as cir- 
cumstances will admit ; that the necessary and reasonable 
expenses which any particular state shall have incun-ed since 
the commence'nent of the present war, in subduing any British 
posts, or in maintaining forts or garrisons within and for the 
defence, or in acquiring aii}^ part of the territory that may be 
reded or relinquished Io the United States, shall be reimbursed: 

'' That the said lands shall be granted or settled at such times 

* 1st Secret Journal, 427. 



15 

and under such regulations as shall hereafter be agreed on by 
the United States in Congress assembled, or any nine or more 
of them." 

These recommendations, the urgent remonstrances of 
the French minister, and the example of New- York, pro- 
duced tiie desired effects. The same month Connecticut 
passed an act of cession; and the 2d of January, 1781, 
Virginia followed her example. Neither of these acts was 
satisfactory ; but they were, at least, indicative of a concilia- 
tory spirit ; and Maryland, on the 2d of February, autho- 
rised her delegates to accede to the confederation ; but 
declared, at the same time, that by that accession the state 
did not relinquish any right which she had with, the other 
states to the back country ; and relied upon the several 
states to do justice in that matter.* 

On the 1st of March, 1781, the delegates of that state 
ratified the articles of confederation ; and, on the same day, 
the delegates of New-York executed a deed of cession to 
the United States on the part of New- York of all her claims 
to territory west of a meridian line twenty miles west of 
the river Niagara, and north of the 45th degree of north 
latitude. 

The general government now commenced its existence 
under a written constitution, with definite powers over the 
Indian affairs, and with certain indefinite and unsettled 
claims to the territory beyond the Apalachian mountains. 
Before this it had proceeded to act upon those claims, firstiv, 
by vindicating their title against the encroachments of Vir- 
ginia, and, secondly, by offering bounty lands, August 27th, 
1776, to British deserters,! and to the soldiers and officers 
of the continental army, Sept. 18, 1776.1 

It afterwards declared, upon some misapprehension con- 

^ 1st Secret Journal, 429. i 1st Journal Old Congresj, 456. 

* lb. 479. 



76 

ccrn'mg thij List resolution, that the land was to be provideJ 
by t!ie United Slates, not by the several states.* 

The articles of confederation having been completed, the 
efforts of the states were directed to the expulsion of the 
British armies, and the question concerning the western 
territory was laid over, until the month of October, 1781, 
when the subject was again agitated, in consequence of 
some proceedings of a committee, to whom had been re- 
committed the territorial cessions of New-York, Connecti- 
cut, and Virginia, and the petititions of tlie Illinois and 
Wabash, and Indiana companies. This committee had 
thought proper to examine into the claims of those compa- 
nies, »nd. to receive evidence concerning the property and 
sovereignty of the western territory. The delegates of 
Vi-rginia refused to submit to any investigation into the 
title of that state ; and, in order to suppiess inquiry, made 
two several motions in congress on the IGth and 26th of 
October, prohibiting the committee to take cognizance of 
that subject. Both those motions were supported by the 
votes of Virginia, North and South Carolina, and Georgia, 
and negatived by tlie unanimous vote of the other stales.! 

This committee, November 3d, 1781, brought in their 
report, which appears in the journal, May 1st, 1782; and 
that part referring to the public claims is here inserted. 

" Your committee do report, that, having had a meeting with 
the agents on the part of New-York, Connecticut and Virginia, 
the agents for INew-York and Connecticut laid before your 
committee their several claims to the lands said to be contained 
in their several states, together with vouchers to support the 
same ; but the delegates on the part of V^irginia declining any 
elucidation of their claim, either to the lands ceded in the act 
referred to your committee, or to the lands requested to be gua- 
ranteed to the siiid state by Congress, delivered to your com- 
mittee the written paper hereto annexed and numbered twenty : 

" That your comnnttee have carefully examined all the vouch- 

! * 1st Joiiin.ll Old Congress, 533. 
\ 3(1 .Tournal Old Congrt-ss, 677. 681 



/ / 

ers laid before them, and obtained all the information into the 
state of the lands mentioned in the several cessions aforesaid, 
and having maturely considered the s;ime, are unanimously of 
opinion, and do report the followipg resolutions : 

'' Resolved, That Congress do, in belmlf of the United States, 
accept the cession made by the state of New-York, as contained 
in the instrument of writing executed for that purpose by the 
agents of ISew-York, dated the day of last past, and 

iiow among the files of Congress ; and that the president do 
take the proper measures to have ihe same legally authenticated, 
and registered in the public records of the state of New- York. 

" The reasons that induced 3'our committee to recommend 
the acceptance of this cession, are, 

" 1st. It clearly appeared to your committee, that all the 
lands belonging to the Six Nations of Indians, and their tribu- 
taries, have been in due form put under the protection of the 
crown of England by the said Six Nations, as appendant to 
the late government of New-York, so for as respects jurisdiction 

" 2d. That the citizens of the said colony of New-York have 
borne the burthen, both as to blood and treasure, of proteciina; 
and supporting the said Six Nations of Indians, and their tribu- 
taries, for upwards of 100 years last past, as the dependents and 
allies of the said government. 

"3d. That the crown of England has always considered and 
treated the country of the said Six Nations, and their tributaries, 
inhabiting as far as the 45th degree of north latitude, as appen- 
dant to the government of New- York. 

" 4th. That the neighbouring colonies of Massachusetts, Con- 
necticut, Pennsylvania, Maryland, and Virginia, have also, from 
time to time, by their public acts, recognized and admitted the 
said Six Nations, and their tributaries, to be appendant to the 
government of New- York. 

"5th. That by Congress accepting this cession, the jurisdic- 
tion of the whole western territory belonging to the Six IVations, 
and their tributaries, will be vested in the United States, greatly 
to the advantage of the union. 

" Resolved, That Congress do earnestly recommend to the 
states of Massachusetts and Connecticut, that they do without 
delay release to the United States in Congress assembled, all 
claims and pretensions of claim to the said western territory, 
without any conditions or restrictions whatever. 

" Resolved, That Congress cannot, consistent with the inte- 
rests of the United States, the duty they owe to their constitu- 
ents, or the rights necessarily vested in them as the sovereigti 
power of the United States, accept of the cession proposed to 
be made by the state of Virginia, or guarantee the tract of 



78 

country claimed by them in their act of cession referred to your 
committee. 

"reasons. 

" 1st. It appeared to your ^committee from the vouchers laid 
before them, that all the lands ceded or pretended to be ceded 
to the United States by the state of Virginia, are within the 
claims of the slates of Massachusetts, Connecticut, and New- 
York, being part of the lands belonging to the said Six Nations 
of Indians and their tributaries. 

'' 2d. It appeared that great part of the lands claimed by 
the state of Virginia, and requested to be guaranteed to them 
by Congress, is also within the claim of the state of New-York, 
being also a part of the country of the said Six Nations and their 
tributaries. 

'' 3d. It also appeared that a large part of the lands last 
aforesaid are to the westward of the west boundary line of the 
late colony of Virginia, as established by the king of Great Bri- 
tain, in council, previous to the present revolution. 

" 4th. It appeared that a large tract of said lands hath been 
legally and equitably sold and conveyed away under the govern- 
ment of Great Britain, before the declaration of independence, 
by persons claiming the absolute property thereof. 

" 5th. It appeared that in the year 17()3, a very large part 
thereof was separated and appointed for a distinct government 
and colony by the king of Great Britain, with the knowledge 
and approbation of the government of Virginia. 

" 6th. The conditions annexed to the said cession are incom- 
patible with the honour, interests, and peace of the United 
States, and therefore, in the opinion of your committee, altoge- 
ther inadmissible. 

" Resolved, That it be earnestly recommended to the state of 
Virginia, as they value the peace, welfare and increase of the 
United States, that they re-consider their said act of cession, 
and by a proper act for that purpose, cede to the United States 
all claims and pretensions of claim to the lands and country be- 
yond a reasonable western boundary, consistent with their for- 
mer acts while a colony under the power of Great Britain, and 
agreeable to their just rights of soil and jurisdiction at the com- 
mencement of the present war, and that free from any conditions 
and restrictions whatever.'"'* 

Several motions viere afterwards made on this subject ; 
but no further advance was made towards an adjustment 
of the difficulty, until the 25lh September, 1782, when the 

* 4th Journal Old Congress. 21. 



79 

following resolutions were again passed by the unanimous 
vote of all the delegates in congress, except those from 
Virginia, Georgia, and North and South Carolina. 

" 1st. That if the several states claiming the exclusive pro- 
perty of the western lands, would make cessions to the United 
States, agreeable to the recommendation of Congress of the 6th 
day of September, 1780, and the resolutions of Congress of the 
10th of October, 1780, it would be an important fund for the 
discharge of the national debt. 

" 2d. That therefore, it be recommended to those states 
which have made ho cessions, to take the above recommendation 
and resolutions into consideration as soon as possible, and deter- 
mine thereon. 

" 3d. That it be recommended to those states wliich have 
made cessions not entirely agreeable to the above recommenda- 
tion and resolutions, to re-consider the same, and send the result 
to the United States in Congress assembled."* 

These recommendations were reiterated on the 18th 
April, 1778, in certain resolutions relative to the extin- 
guishment of the public debt, and on the 4th of the suc- 
ceeding June, the Virginia cession was again referred to a 
committee, to report upon the proposed cession, without 
deciding upon the title of the state.! This reference 
excited the alarm of the New-Jersey legislature, and a 
remonstrance was forwarded by that body to congress 
within ten days after that reference, expressing their hopes 
that the cession of Virginia might not be accepted, | un- 
less it was more liberal. 

The committee to whom the reference had been made, 
consisting of Messrs. Rutledgc, Ellsworth, Bedford, Gor- 
ham, and Madison, men ranking among the ablest and 
most judicious members of congress, made a report, reciting 
the conditions of the Virginia cession, viz: 

1st. That the territory north-west of the Ohio, which 
was the tract ceded, should be iaid out into republican 
states of certain specified dimensions, which were to be 

' 4th Journal Old Congress, 82. t lb. 227,231. t lb 



m 



admitted into the Union, with the same rights as the other 
states. 

2d. That Virginia should be reimbursed by the United 
States her expenses in reducing the British posts, and all 
other expenses incurred on account of the north-west 
territory during the war. 

3d. That the inhabitants of Kaskakies, St. Vincent, and 
the vicinity, should be secured in their possessions, and 
protected by the United States. 

4th. That one hundred and fifty thousand acres in such 
part of the north-west territory as the othcers should select, 
should be granted to the soldiers and officers engaged it* 
the expedition under colonel Clarke, against the British 
post in that country. 

5th. That certain bounty lands promised to the Virginia 
troops in the continental service, which were to be located 
in the north-west territory, in case of any deficiency in the 
quarter to which they were tirst to resort, should be granted 
to them in the event of that contingency. 

6th, That all the remaining territory, not disposed of in 
bounties to the American army, should be considered a 
common fund, for all such states as had, or might, become 
mennibers of the union. 

7th. That all Indian purchases, which had been, or 
should be, made for the use of private persons, and all royal 
orants inconsistent with " the chartered rights, laws, and 
customs of Virginia," should be declared void. 

8th. That all the territory south-east of the Ohio, in- 
cluded between the boundaries of Pennsylvania, Maryland, 
and Nortli Carolina, to the Atlantic, should be guaranteed 
to Virginia by the United States. 

The first condition the committee decided to have been 
provided for by the act of congress, October lOth, 1780. 

The second condition was also considered to have been 
provided for in the same act ; but, in order to adjust the ac- 



81 

count of such necessary and reasonable expenses as came 
within its true intent and meaning, it was agreed to appoint 
three commissioners for that purpose. The settlers de- 
scribed in the third condition, the committee thought, ought 
to be protected in their possessions, rights, and liberties. 

Tt recommended thajSjjbgress should agree to the fourth, 
fifth, and sixth conditions, and deemed it improper to de- 
clare the purchases void, as required by the seventh con- 
dition. 

The report of the committee upon the eighth condition, 
is as follows : 

"As to the last condition, your committee are of opinion, that 
congress cr. iinot agree to guarantee to the commonwealth of 
Virginia, the land described in the said condition, without enter- 
ing into a discussion of the right of the state of Virginia to the 
said land; and that, by the acts of congress, it appears to have 
been their intention, which the committee cannot but approve, 
to avoid all discussion of the territorial rights of individual states, 
and only to recommend and accept a cession of their clairnsj 
whatsoever they migiit be, to vacant territory. Your committee 
conceive this condition of a guarantee, to be either unnecessary 
or unreasonable ; inasmuch as, if the land above-mentioned is 
really the property of the state of Virginia, it is sufficiently se- 
cured by the confederation ; and if it is not the property of that 
state, there is no reason or consideration for such guarantee." 

The committee concluded by recommending that if Vir- 
ginia should make a cession conformable to their report, 
congress should accept it. 

This report was agreed to by all the states except New» 
Hampshire, New-Jersey, and Maryland ; and the legisla» 
ture of Virginia passed an act accepting of the terms of 
compromise offered therein, and authorised their delegates 
to prepare a deed of cession accordingly. Tiiis was done, 
and on the first of i\Iarch, 1 784, the state of Virginia ceded 
its title to the north-west territory to the United States, 
upon the terms prescribed in the report of September I2lh 
1783. 

U 



82 

Whilst this compromise was goins; on with Virginia, the 
United States were negotiating the terms of peace with 
Great Britain. Among the unsettled questions between 
these contending powers, the boundary line between their 
respective possessions, formed an important item of discus- 
sion. The commissioners of the UriHed States at Paris, were 
of course instructed to maintain the title of this republic to 
as large a tract of territory as they could obtain. Great 
Britain, on her part, contested this title ; but the arms of 
the allies had tlien obtained the ascendancy, and she was 
compelled to yield to most of their demands. , 

In establishing the title of the United States, all the dif- 
ferent rights which any of the states conceived they had 
acquired under the royal charters, by legislative acts, In- 
dian purchases, occupation of the colonists, expenditure of 
blood and treasure in reclaiming and maintaining the 
country, and reducing the British posts, were brought for- 
ward, and strongly insisted upon. The negociators, how- 
ever, conceived themselves justified in departing from the 
boundary line prescribed by congress, which originally took 
in a large part of Canada, south of the 45th degree of north 
latitude,* as part of the States of New-York, and Massa- 
chusetts. The line which was finally agreed upon in the 
provisional treaty, of November 3Gth, 1 782, ran up the river 
St. Lawrence, beginning at the point where it was inter- 
sected by the forty-fifth degree, into Lake Ontario, and up 
the usual water communications through Lake Erie, Huron, 
Superior, Long Lake, Lake of the Woods, to the north- 
west point thereof; and thence due west to the river Mis- 
sissippi, down said river to the thirty-first degree of north 
latitude, and thence along the boundary of the Floridas, as 
prescribed in the proclamation of 'G3. By this line, a large 
portion of territory comprehended within the terms of the 
charter of Massachusetts, and clearly within the province 

* Vide 2i Secret Journal, 226. 



33 

of New-York, before the passage of the Quebec act, was 
left out of the hmits of the United States. Another fact 
connected with this boundary, deserves to be mentioned, 
not only from the singular character of the transaction, but 
because it bears directly upon the question, which after- 
wards arose between Georgia and the United States. 

By a separate and secret article, which there is good rea- 
son to believe, was attached to this provisional treaty, it 
was agreed, that, in case Great Britain should succeed in 
retaining the Floridas, the southern boundary of the Uni- 
ted States should be limited by the northern boundary of 
those provinces as set forth in the recommendation of the 
board of trade, dated March 23d, 1764, viz : by a line 
running due east from the mouth of the Yazoo river, to 
the river Apalachicola ; but if she should be compelled to 
cede them to Spain, then it was to run as described in the 
treaty.* By this arrangement, the sovereignty of the terri- 
tory between the 31st degree, and 32, 30, north lat. was to 
depend upon the contingency of the cession of the Floridas, 
and, as they were ceded to Spain, it was added to the United 
States. The boundary line, in the treaty of 1782, was af- 
terwards confirmed by the treaty of peace, of '83, and the 
title of Great Britain to all the territory withm these limits 
transferred to the United States, in their confederated cha- 
acter. 

On the 29th of April, 1784, the states which had not 
ceded their claims to the western country, were again urged 
by congress to make the necessary cessions, for the pur- 
pose of relieving the public burthens. The question as 
to the character of those claims again recurred, and all 
the states, except Virginia and North and South Carolina, 
were unanimous in characterising them merely as clainis. 
One delegate from Virginia, the venerable author of the 
decl.iraiion of independence, concurred in this vote.t 

* 4th Secret Journal, SOO. t 4th Journal Old Congress, 381. 



84 

Georgia and Delaware were not present at the passage of 
this resolution. 

The legislature of Massachusetts, in conformity to this 
recommendation, November 13th, 1734, authorised her de- 
legates to cede the title of that state, to all territory west 
of the western boundary of New-York, to the United 
States, without condition.* 

Her delegates accordingly proceeded to execute their 
trust, and with a patriotic foresight, which will forever re- 
dound to his honor, one of them, Mr. Rufus King, intro- 
duced, March 16th, 17G5, a resolution, by which the prohi- 
bition of slavery was made a fundamental article of com- 
pact between the United Statesand the north-western states, 
and afterwards they executed the deed of cession, con- 
veying the claim of Massachusetts to the confederacy.! 
The decision of the resolution respecting slavery was simi- 
lar to the other votes upon the cession of territory. Vir- 
ginia, Georgia, North and South Caioiina, in the negative, 
and the other slates in the affirmative.! 

The only claim to the north-west territory, not then ce- 
ded to the United States, was that on the part of Connecti- 
cut ; and this, although strongly insisted upon by that state, 
was never regarded as a title entitled to much consideration. 
The western boundary of Connecticut had been so clearly 
defined in her agreement with New-York, that all her 
claim beyond that state was supported upon very untenable 
grounds. Still, however, it was the claim of a state, and 
as such, the national government felt desirous of extinguish- 
ing it. In the month of May, 178G, the Connecticut legis- 
lature authorised her delegates to cede to the United 
States, all her right to the lands lying west of a meridian 
line, 120 miles west of the western boundary of Pennsyl- 
vania. As it was at first thought, that by accepting this 

* 4th Journal Old Congress, 500. t lb. t lb. 481. 



85 

partial cession, the title of Connecticut to the part not 
ceded, would be admitted, congress refused to accept it ; 
but afterwards it consented by the votes of all the states, 
excepting Maryland, to accept the cession.* A deed of 
cession was accordingly executed, September 13th, 1786, 
and the claims of all the states to the north-west territory 
extinguished, excepting to the tract called the Connecticut 
reservation. 

This tract was speedily settled by emigrants from that 
state, claiming under its grants ; and the general govern- 
ment, finding a great number of settlers in possession of 
the land, with that regard for the harmony of the country 
which has invariably characterized its proceedings, oflTered, 
by an act of congress, passed April 2oth, 1800, to issue 
letters patent granting the property in the soil to the gover- 
nor of Connecticut, in trust for the grantees of that state, 
provided she relinquished her claims of jurisdiction within 
e%ht months.! This offer was accepted, and the question 
as to the property and sovereignty of the north-western 
territory finally settled. 

The settlement of the right to the south-western territory 
beyond the Apalachian mountains was attended with greater 
difficulties ; as the subject was not only more complicated 
in itself; but was rendered still more so by the subsequent 
proceedings of the legislature of Georgia. 

This territory was occupied by large and powerful tribes 
of Indians, completely independent ; among which the 
Creeks, Chickasaws, (>herokees, and Choctaws, were par- 
ticularly distinguished. These savage nations extended 
over a large tract of country, which they occupied for 
hunting grounds, without any definite boundaries ; and in 
many instances, their claims interfered with each other — 
two or more tribes claiming the same territory. 

* 4th Journal Old Congress, 648. t 3d U. S. Laws, 364. 



86 

To the greater part of this tract the United States and 
Spain both laid claim; and, in fact, to the ultimate do- 
minion of certain, but of different portions, each had a 
right. The boundary line between their possessions ran 
through this Indian territory, and a serious dispute arose as 
to where this line should be fixed. 

Spain claimed, as part of West Florida, all south of the 
east line from the mouth of the Yazoo river, and as part of 
Louisiana, a large tract of country east of the Mississippi, 
the boundary of which was to be ascertained by nego- 
ciation. 

The United States resisted this claim, and insisted upon 
the boundary prescribed by the treaty of 1783. In order 
to strengthen her title, Spain concluded treaties, in June, 
17G4, with the Chickasaw, Choctaw, and Creek nations, 
by which the former acknowledged the Spanish title, to the 
territory within the boundary claimed by that power, and 
promised to support it in its right thereto. Alexandtr 
M'Gillivray, the principal chief, acting in behalf of the 
Talapuches, Seminoles, Alibamas, Cahuitas or Cowetas, 
and other tribes, composing the greater part of the Creek 
nation, entered into a treaty at the same time with the 
representatives of the king of Spain, by which the Creeks 
acknowledged themselves to be his subjects and vassals ; 
promised to obey his orders and laws, and to live in peace 
with the other Indians, " for the purpose of promoting com- 
merce and agriculture."* By this treaty they wei-e gua- 
ranteed in their landed possessions by the Spanish crown ; 
and o^her lands were promised them in case of their vio- 
lent expulsion by their enemies. 

The treaty-making power in these tribes, as in most 
other Indian nation?, was vested in the principal men. No 
jiaiticular number was necessary to make a treaty ; inas- 

* lOth State Papers, 225. 



87 

much as its binding force upon the Indian tribes, in sonie 
measure, depended upon the influence of those who sup- 
ported it. If their power in the nation was greater than 
that of the dissenting party, its provisions were complied 
with. But if its conditions were unacceptable to the ma- 
jority of the nation, the making a treaty often produceti a 
war, either among the Indians or with the whites. In 
general, however, the aborigines conformed to their 
agreements, and almost always, when made by a national 
council properly called. Among the Creeks this national 
council was composed of the principal chiefs or represen- 
tatives of the tribes, and even of (owns. Their government, 
similar to that of all barbarous tribes, was of undefined 
powers. Formerly it was in the nature of a confederacy 
between tribes, nearly equal, and owning hunting grounds, 
to some of which particular tribes were acknowledged to 
have a separate title ; while the title of the nation in its 
confederate character covered the rest. 

During and subsequent to the American revolution, 
however, they assumed more of a national character ; and, 
as a distinct people, entered into treaties with the two 
powers which claimed the right of preemption of their ter- 
ritory. Mc Gillivray, as their head chieftain, possessed the 
greatest influence with the tribes, and to him chiefly, they 
confided the management of their foreign relations; and by 
his influence they were guided in their choice of foreign al- 
liances. It was by him that the treaty with Spain was made 
in 1784. 

The year before the conclusion of that treaty, the state 
of Georgia, which, during the war, had made no claim nor 
pretension to the western lands ; but as an exposed and 
frontier state, had submitted its fate, and its limits, to the 
discretion and generosity of congress, set uj) a claim lo the 
territory which now forms the states of Mississippi and Ala- 
bama. 



88 

The war with Great Britain, after the capture of Corn- 
wallis, became merely an effort on the part of our oppo- 
nent, to retain, as colonies, the two southernmost states. 

Georgia, being tne weakest and most exposed, was con- 
stantly soliciting assistance from congress, and it was libe- 
rally afforded. She was excused from paying her quota for 
the common defence. Money was advanced to her at divers 
times ; and congress unanimously resolved not to consent to 
a peace, until the independence of Georgia and South-Caro- 
lina was acknowledged. After the provisional treaty of 
peace had been made, and the limits of the United States 
defined, viz. February 17tli, 1783, the legislature of Georgia 
passed an act, claimitig all the territory south and west of 
the South-Carolina boundary, and opening a land otiice. 

This was the commencement of the contest with Georgia, 
as to the powers of the confederacy, and the ground then 
taken by the authorities of that state, as to its peculiar 
privileges, was not only destructive to the rights of the 
union, but also to the rights of the several states. 

In the month of May succeeding this declaration of her 
boundaries, her executive proceeded to enter into treaties 
with certain Creek and Cherokee chiefs, defining the line 
between the Indian lands and the white settlements. Two 
years afterwards, November 12th, 1785, these chiefs, with 
some others, undertook to agree to the treaty of Galphin- 
ton, by which they acknowledged, in the first article, " that 
liie said Indians, for themselves and all the tribes or towns 
within their respective nations, within the limits of the 
state of Georgia, have been, and now are, members of the 
same, since the day and date of the constitution of that 
state."* 

Whether this provision was intended as an offset to the 
treaty concluded the year before, by Mc Gillivray, with 

' Digest of Georgia Laws, 607. 



89 

Spain, we cannot tell ; but certain it is, that the treaty of 
Galphinton gave great dissatisfaction to the Creek nation, 
and brought on hostilities between them and the people of 
Georgia. The next year, the state authorities attempted 
to settle the.^e difficulties, by a treaty concluded at Shoul- 
derbonc,* with a portion of the Creeks ; but as the boun- 
dary defuied in the Galphinton treaty, by which certain 
lands near the Ocunne were ceded to the whites, was still 
adhered to, the discontent of the Indians was not diminished. 
All these proceedings of the state authorities were, accord- 
ing to their own peculiar construction of their state rights, 
but contrary to the spirit of the confederacy, and the un- 
questionable prerogative of the general govenimcnt. Even 
supposing that the right of Georgia to the territor)- occu- 
pied by the Creeks had been undisputed, still it would have 
been only acting conformably to the example of many older 
and more powerful states, to have applied to congress for ' 
its concurrence and co-operation in the contemplated trea- 
ties. The application of Pennsylvania, in 1783,t relative 
to a treaty to be formed with the Indians inhabiting the back 
part of that state, afforded a precedent, which might have 
been adopted without detracting from the dignity or patriot- 
ism of her younger sister, if her limits had been defined, 
and her rights indisputable. But they were not. 

The state of South-Carolina claimed all the territory 
south and west of a line drawn from the head of St. Mary", 
to the head of the Alatamaha, and thence west to the Mis- 
sissippi, as within her chartered limits. 

To all the land west of the Appalachian mountains, the 
United States laid claim, as beyond the western boundary 
of the British provinces, and consequently a conquest from 
Great Britain by the common efforts, and expenditures or 
all the members of the Union. This claim was sustained 

* Digest of Georgia Laws, 607. t 4th Journal Old Congress, £74. 

12 



90 

Upon the same principles, as the right of the Union to the 
north-west territory. Congress showed too, that when the 
Georgia charter was given, this territory was occupied by 
the French, who held forts extending from Mobile bay, 
nearly to the northern boundary, described in that charter; 
and appealed to maps, to prove that Georgia did not extend 
beyond the mountains. The proclamation of '63, after 
its cession by the French, and the decisions of the Boards 
of trade, as well as the total absence of all legislative pro- 
ceedings on the part of the state, until after (he provisional 
treaty with Great Britain, were also relied upon to disprove 
the claim of Georgia. 

To another part of this territory, viz : to that south of 
the parrallel of latitude, from the mouth of the Yazoo ri- 
ver to the Apalachicola, the United States asserted their 
right, as a cession of a portion of West Florida. It had 
been annexed to that province, pursuant to the recommen- 
dation of the board of trade, after the last extension of the 
limits of Georgia, and by virtue of that royal prerogative, 
which had augmented the boundaries of that state. It had 
afterwards been comprehended in a secret article attached 
to the treaty with Great Britain, by which its cession to the 
United States depended upon the contingency of the ces- 
sion of tlie rest of Florida to Spain. This contingency 
happened, and as part of Florida, its cession to the United 
States became complete. 

Under these circumstances, the formation of these trea- 
ties with independent tribes of Indians, was an interference 
by Georgia, with the prerogative of the national govern- 
ment, destructive to all its rights, and to all distinction be- 
tween internal and external relations. It was so regarded 
by congress at the time ; but that body, with its customary 
discretion, sought to avoid any direct collision with the 
state governments, by pressing upon them a compliance 



91 

with the resohitions recommending cessions of their claim4 
to the western territory. 

The legislature of North-Carolina, on the 2d of June, 
1784, had passed an act of cession of the western territory 
with certain conditions, which gave to the United States a 
right to accept the same within a year. Before the expira- 
tion however of the year, it repealed that act, and 
it was proposed in congress to accept the cession made by 
the first act, nowithstandingthe repeal.* Adisposition to ob- 
tain the rights of the Union by persuasion, rather than by 
coercion, still predominated, and congress contented itself 
with recommending to North-Carolina to follow the exam- 
ples of New-York, Virginia, and Massachusetts, in relation 
to the territory ceded by their act of June 2d, 178 i.t 

The legislature, however, did not comply with this re- 
commendation, and no cession was obtained from that 
state, until after her accession to the federal constitution, 
in 1789. 

South-Carolina, in 1785, made a cession of its claim to a 
small strip of land west of Tugaloo river. This cession, 
however, was of but little importance, and is merely enu- 
merated to preserve the chronological order of these acts. 
The same year she ceded to Georgia the residue of her claims 
to the western territory. Georgia took, as yet no steps for 
the extinguishment of her pretentions ; but adhering to her 
claims, according to her own statutes and treaties, produc- 
ed disturbances on the part of the southern tribes, to such 
a degree, as to expose the country to a general Indian war. 
In this crisis, congress was applied to, to interfere with the 
power of the nation, to repress the Indians, who then were 
in a state of great excitement. 

The whole business was referred to a committee, which, 
,4ugust 3d, 1787, brought in a report censuring the conduct 

* 4th Journal Old Congress, 523, t lb. 525, 



92 

of Georgia, with regard to the Creeks ; imputing tlie dis- 
turbances to up.just encroachnnents on the part of the 
whites ; maintaining the right of congress to control those 
subjects.and resolving that (jieorgia be informed that congress 
would not employ the power of the Union to sustain a cause, of 
the justice of which lliey were not convinced; nor interfere in 
behalf of a state against an independent tribe, unless con- 
gress should have the sole direction of the war, and the 
right to regulate the terms of peace. (Vide Appendix E.) 

On the 20th of the succeeding October, congress again 
urged upon the states of Norlh-Carolina and Georgia, 
" to justify that conjidence which had been placed in Iheni,'''^^ 
by making cessions similar to those made by the other 
states. This guarded expression fully showed the opinion 
then entertained of the propriety of those claims, and pro- 
bably, nothing but the comity with which congress felt dis- 
posed to treat the members of the confederacy, prevented 
that body from taking some decisi\ ( stops for the ascertain- 
ment of its rights. The same tone is to be seen in a reso- 
lution passed the year before, recommending similar ces- 
sions to the same slates, together with Soutli-Carolina.t 

Those states arc there "once more solicited to consider 
with candour and liberality, the expectations of their sister 
states," and to comply with the reasonable proposition of 
the 6th of September, 1780. 

Nothing, however, was done, by either Georgia or North- 
Carolina, towards the adjustment of these difficulties, until 
after the framing of the federal constitution, and its ratifica- 
tion by the state of Georgia, January 2d, 1788. 

By this instrument, the states were prohibited from en- 
tering " into any treaty or alliance ;" but the treaty-making 
power was confided exclusively to the general government. 
This grant of power comprehended all agreements with the 
Indians ; and in another part of the constitution congress 

* 4th vol. Journal Old Congress, 800. t lb. 680. 



93 

was authorised to regulate commerce with the Indian tribes. 
These two clauses were intended as an equivalent to the 
provision in the articles of confederation ; by which con- 
gress was invested with the power " to regulate the trade 
and to manage all affairs with the Indians, not members of 
any state ; provided that the legislative right of any state 
within its own limits, be not infringed or violated." All 
our intercourse with the Indians, so long as they con- 
tinued to be independent, was in the way of trade, or in 
making treaties, and these were placed under the con- 
trol of the general government. It was not contemplated, 
under either system, that congress should have any legisla- 
tive power over the Indians ; but that it should have the 
exclusive power to regulate the trade, and to make treaties 
with them. So long, therefore, as they were independent, 
and proper parties to treat with, congress was invested with 
the power to manage our relations with them ; but when 
they lost that character, and became members of a state, 
they fell under the power of the local government, and 
congress, from that moment, ceased to interfere with them. 
In the old articles of confederation, there was ground for 
dispute ; because the prohibition of making treaties, by a 
member of the union, was expressed thus — " with any king, 
prince, or state ;" but, in the federal constitution, as con- 
gress is solely invested with the treaty-making power, and 
that of regulating commerce with the Indians, the instant 
an Indian tribe loses its distinct and independent character, 
congress ceases to have any pretence to interfere with it: 
and it becomes the subject of local legislation. 

Several attempts were also made in the convention, which 
framed the federal constitution, to provide some method of 
determining upon the claims of the United States, and the 
several states, to vacant territory •* but as a sufficient num- 
ber of impediments already existed, to the formation of a 

* Journal of the Federal Convention, 309. 



94 

national govenimeni:, it was finally concluded to leave the 
subject as they found it; reserving to all parties their re- 
spective rights. A provision was accordingly inserted, 
giving power to congress 'Mo nn.ake all needful regulations 
respecting the territory of the United States ;" and it was 
declared, that " nothing in this constitution should be con- 
strued so as to prejudice any claims of the United States, or 
of any particular state." 

After the state of Georgia had agreed to the constitution, 
the legislature passed an act ceding part of the claim of the 
state, to the United States, upon certain conditions. This 
act was passed February 1st, 1788. The part to which 
the claim was ceded, was a tract of one hundred and forty 
miles wide, extending from the Apalachicola to the Missis- 
sippi. As the southern boundary of the part ceded was 
the thirty fir?t degree, it consequently comprehended all 
that tract to which the United States had already an un- 
questionable claim, as part of West-Florida, being about 
one hundred miles in width, and of equal length to the 
whole tract purporting to be ceded. For this incomplete 
and inconsiderable cession, Georgia demanded that the 
United States should guarantee to that state, all the re- 
maining territory claimed by her; and that the sum of 
^171,428, which had been spent by the state, in the 
management of her Indian relations, should be allowed 
as a charge against the United Stales, and admitted in 
payment of a specie requisition upon the states, by con- 
gress. Olherconditions were/inserted, respecting a repub- 
liciin government for the said territory, the free navigation 
of its rivers, and the allowance of such expenses as the 
state might be put to in her defence. These conditions 
were all unnecessary ; having been already provided for by 
congress. 

This act of cession was referred to a committee, which 
hrought in. July loth, 1783, a report, declining to accept 



m 

the cession : 1st, because a large tract of country extend- 
ing to the Mississippi, was retained by Georgia, which would 
diminish the value of the tract in question. 2dly, because 
the demand of the specie allowance was unjust, especially 
as the state was already a debtor to a large amount loaned. 
3dly, because congress had invariably refused to guarantee 
territorial rights to any member of the confederacy.* 

Undar these circumstances, the federal constitution 
went into operation with the assent of eleven states. 
Rhode-Island and North-Carolina, refusing to ratify it, and 
inconsequence of that refusal were jjlaced, in their com- 
mercial iiitercourse, with the rest of the union, upon the 
same footing, in some respects, with foreign powers.! 

North-Carolina, very shortly after the passage of these 
laws, viz. 21st November, 1789, ratified the Federal Con- 
stitution, and a few days afttrwards her legislature passed 
an act, ceding to the United States all the claim of the 
state to the western territory beyond her present boundary^ 
upon condition| that the land ceded, and its inhabitants, 
should not be enumerated in ascertaining the quota of the 
state to the public debt, but that they should be made 
liable for their own proportion thereof, and also for their 
proportion of the arrears of North-Carolina — that the 
lands promised to the soldiers of the North-Carolina line 
by the legislature, and all land entries or grants legally 
made under the land laws of the state, should be made 
good, as if no cession had been made — that the cession be 
accepted by congress within 18 months — that the lands 
of non-residents should not be taxed higher than those of 
residents — that the people residing between the Tenessee 
and Big Pidgeon, should be permitted to enter their pre- 
emptions, provided an office were authorised by the state 

" 4th Journal Old Congress. t 2d United States' Laws. 31. 53-- 
$ 2d If . States' Laws, 86. 



96 

— It was also prescribed that the lands should be consider- 
ed a common fund, and be governed as the noith-west 
territory, with the single exception that slaves should not 
be emancipated. The senators of the state, February 26, 
1790, executed a deed of cession upon those conditions, 
which was accepted by congress, and the right of North- 
Carolina, whatever it was, became thus vested in the Uni- 
ted States. « 

Whilst the general government was engaged in making 
this compromise with North-Carolina, the state of the re- 
lations With the Creek Indians also received its earnest at- 
tention. Commissioners on the part of the United States 
were appointed by president Washington to inquire into 
the causes of the Indian disturbances. These commission- 
ers performed their duty, and made their report upon the 
whole matter, together with their opinion, that the treaties 
of Georgia with the Creeks, (which then were generally 
reported to have been fraudulently made,) were, for aught 
they could discover, made " with as much substantial form, 
and apparent good faith and understanding of the business, 
as Indian treaties have usually been conducted, or perhaps 
can be, where one of the contracting parties is destitute of 
the benefits of enlightened society." 

In making this report, the commissioners did not perhaps 
advert to the fact, that in agreements between parties of 
this description, the fairness of the bargain depends, rather 
upon the disposition of the party enlightened by civilization 
to do iustice, than upon ^'' substantial form and apparent 
good faith.'''' 

However, this may be, certain it is, that General Wash- 
ington ordered another treaty to be made with the Creeks, 
and a treaty was accordingly made at New- York, August 7th, 
1790,* with the representatives of the Creek nation, and 

* 1st United States' Laws, 359. 



97 

among others, McGillivray, by General Knox, the then se- 
cretary of war. In this treaty, a boundary Hne between 
the Creeks and white settlements was agreed to, not alto- 
gether in conformity with the line prescribed in the treaty 
of GaJphington ; but as much so as the Creeks would con- 
sent to, and the United States promised to guarantee to the 
Creeks, tlieir lands according to the defined boundaries, and 
to promote their civilization, by furnishing them with do- 
mestic animals and agricultural implements. The Creeks 
within the limits of the United States, on their part 
acknowledged themselves to be under the protection of the 
United States, and stipulated not to hold any treaty with any 
individual state, or with any individuals of any state. They 
also disclaimed the protection of all other sovereigns. 

This treaty was censured by the legislature of Georgia, 
in resolutions passed November 26th, 1790, and a portion 
of the citizens of that state undertook to disregard it, and 
entered the Indian territory with an armed force. 

This conduct was afterwards justified by a jury of that 
state, upon the ground that the treaty of New-York was 
unconstitutional, being a violation of state rights. Its re- 
sults were however, highly injurious to the public interests. 
The Creeks, already, strongly inclined to a Spanish al- 
liance, were provoked by this violation of a treaty just 
concluded : and in that state of excitement, they were per- 
suaded by an adventurer named Bowles, and a Spanish 
agent called Olivar, to disown the treaty of New- York, and 
to enter into hostilities with the frontier settlers of Geor- 
gia. In this, they were secretly supported by the Spanish 
authorities in the neighbouring provinces, who supplied 
them with arms and munitions of war. This course of 
conduct was adopted in the expectation, that finding it dif- 
ficult to quiet savages, the United States would be less un- 
willing, to admit the pretensions of Spain to the greater part 
©f the territory occupied by them. As a mediator between 

13 



98 

us and the Creeks, she hoped to be able to circumscribe 
our southern boundary . 

la this attempt she was defeated. The executive of the 
United States-, would not depart from the boundary pres- 
icribed bv the treaty of peace with Great Britain; and after 
a long and tedious negociation, in which our minister was 
finally compelled to demand his passports, Spain acceded 
to a treaty, October 2Tth, 1795, recognizing the boundaries 
of the United States, and both parties mutually agreed not 
to enter into treaties with the Indians, not residing in their 
respective possessions. 

After the conclusion of this treaty, the pacification of the 
Indians was easily afl^ected. In 1706, June 20th. a treaty 
was concluded with the Creeks at Coleraine,* confirming 
the treaty of New-York ; providing for running the boun- 
ary line, and for furnishing the Creek with blacksmiths as 
pioneers of civilization. Congress the same year passed, a 
statute declaring the boundary line between the United 
States and the Indian tribes, according to the different trea- 
ties, and prohibiting any encroachment or entry upon their 
lands without a passport. By these treaties, the question 
between the United States and Georgia, as to the western 
territory, was much simplified ; and the rights of each could 
have been easily ascertained by parties mutually inclined 
to an amicable settlement : if the legislature of Georgia 
had not again involved the business in difficulty by con- 
senting to the celebrated Yazoo contract, 

In the year 1795, the legislature of that state, corrupted 
V by certain land speculators, conveyed to four companies 
the greater part of the territory in dispute between Geor- 
gia and the United States. 

To the Georgia Mississippi Company, it conveyed most 
of the territory west of Tombeckbe river, comprehended 

* 1st United States' Laws, 363. 



99 

in the secret article of the provisional treaty of '82, and 
ceded to the United States as part of \Ve5i.Florida. This 
tract was 200 miles long and about 82 miles broad, being 
about one-fourth of the present state of Mississippi. To 
the Georgia company it conveyed another portion of the 
ceded part of Florida, and a large tract above the limits 
of that province, being a parallelogram 300 miles long and 
about 100 miles wide, besides a triangle 50 miles in length 
at the base, and 100 miles from the base to the opposite 
angle. To the Tennessee and to the Upper Mississippi 
companies were ceded two tracts — one about 150 miles 
long and 50 miles wide : the other about 125 miles long 
and 25 in width, being about two-thirds of all the country 
claimed by Georgia under the charter of 1732, beyond her 
present limits. 

Altogether the cessions to the Yazoo purchasers, as they 
were called, comprehended 35,000.000 acres of land, about 
four-fifths of all the western territory to which that state 
laid any claim. It should be recollected, that to all this 
territory the United States also laid claim : and to one 
tract about 100 miles wide and 360 miles in length, their 
title was incontrovertible, and yet this territory the legis- 
lature of Georgia undertook to convey to individuals. 

It is true that no doubt could exist of the corruptness of 
that legislature, but still it had, in the exercise of its con- 
stitutional powers, conveyed away the title of the state. 
This legislature was chosen too, by the people of Geoi^a, 
when it was generally known that an application would be 
made to that body, to dispose of the western lands, and the 
inducements for the sale were spread before the voters at 
the time of the election. 

Directly after the passage of this act, the prime movers 
in the business, in order to prevent its repeal and to eng:age 
an extensive interest in its support, began to sell shares in 
the companies, to bona fide purchasers in different parts of 



100 

the union, before tlie manner in which the contract had 
been obtained became generally known. In Georgia, 
however, great excitement prevailed. The members who 
had opposed the passage of the law, upon their return to 
their constituents, informed them of the corruption that 
prevailed in the legislat ire, and universal indignation was 
manifested at their treachery. Some of the deliv.quents 
were put to deain, and others fled Irom the state to avoid 
the popular rage. The next legislature declared the con- 
tract void, and in 1 798 a new state constitution was framed, 
in which a declaration of boundaries was inserted, claim- 
ing, in behalf of the state, all the territory west of South- 
Carolina, and south of the south boundary of the tract 
ceded to the United States by that siate. All this tract 
was declared to be the property of the free citizens of 
Georgia, and inalienable but by their consent. Provision 
was, however made for a sale to the United States by the 
legislature of all west of the Apalachicola, and for the re- 
turn of the money paid to the state by the Yazoo pur- 
chasers. 

The propriety and dignity of these proceedings on the 
part of the state government do not now come in question. 
How far it could be properly alleged that the represen- 
tatives of Georgia had been corrupted ; that the sovereign 
power for the time being had proved faithless to itself, are 
questions of deep moment, and highly proper for the consi- 
deration of the historian of that state. 

These are questions, however, which could only be 
mooted between the state and those who were actually 
concerned in corrupting its legislature ; and their decision 
could not affect the bona fide purchasers from the original 
grantees. They denied, and with good reason, the power 
of a succeeding legislature to deprive them of their vested 
rights, and threatened to bring the matter before the judi- 
cial tribunals for adjudication. 



101 

This was afterwards done in the case of Fletcher vs. 
Peck. This was a case stated for the decision of the 
Supreme Court of the United States, reported 6th Crauch, 
87. 

Many material facts invalidating the title of Georgia 
were there omitted ; but the question as to the right of the 
legislature to annul the contract, so as to deprive innocent 
purchasers of their vested rights, was distinctly presented 
to the court, and decided in favour of the purchasers. So 
far, therefore, as Georgia had a title to the lands, thus 
vested iii the bona fide holders of Yazoo shares, it had con- 
veyed it away by the act of its legislature. 

In this state of affairs, congress found it necessary to take 
measures to secure the rights of the United States, and on 
the 7th of April, 1798, an act was passed erecting the tract 
above alluded to as comprehended within the secret article, 
into a territory, and establishing a government for the 
same.* 

With a title thus complicated, and embarrassed by the 
claims of the Union and of its own grantees, it was obvious 
that but little could be done by the state of Georgia. The 
state government, therefore, entered into a negociation with 
the general government for a cession of its claim, and, in 
IGO^, concluded the celebrated agreement, by which its 
title was finally extinguished. 

The terms of this agreement are as follows, viz : 

Georgia ceded all her claim to the lands beyond her 
present western line, upon condition, 

1st. That the United States should pay to that state 
^1 ,250,000 out of the first net proceeds of the lands ceded, 
on account of the expenses to which it had been put in rela- 
tion to that territory. 

.2d. That all persons settled before October 27th, 17S>5, 

* 3d Tol. United State*' Lawi, S9. 



182 

within that territory, under British or Spanish grants, or 
claiming under an act of the Georgia legislature, passed in 
1785, laying out a county by the name of Bourbon, should 
be confirmed in their possessions. 

3d. That all the lands ceded should be a common fund, 
excepting 3,000,000 acres, which the United States, before 
twelve months had elapsed after the assent of Georgia to 
that agreement, might appropriate for the purpose of satis- 
fying the Yazoo claimants. 

4th. That the United States should, at their own ex- 
pense, extinguish for the use of Georgia the Indian title to 
all the lands within the state, " as early as the same could 
be obtained on reasonable terms." 

5th. That the territory ceded should be admitted into 
the Union as a state as soon as expedient, and that it should 
be governed as the nortli-vvest territory, with the exception 
that slavery should not be prohibited. 

The United States accepted of this cession upon these 
conditions, and on their part, ceded to Georgia all their 
claim to the territory east of the boundary line described 
in the agreement, and not lying within any other state. 
Upon these terms the claim of Georgia was ceded to the 
United States ; and ^5,000,000 were afterwards paid to the 
Yazoo purcliasers, upon the relinquishment of their claims, 
both to the land, and to the money paid by them into the 
Georgia treasury. This amount was debited to the state 
as part of the ^1,250,000 due under the above agreement. 

Until this agreement, the general government had invari- 
ably refused to make any payments, or to extinguish any 
Indian title for the benefit of a particular state. It had 
been liberal to all states claiming vacant lands, in assenting 
to their reservations, and confirming their grants made un- 
der the impression that their title was good. But whilst it 
freely consented to these sacrifices for the sake of harmony, 
and out of delicacy to the state governments, it steadily 



103 

witheld all assent to the validity of their claims. Even in 
in this agreement, the payment to Georgia, was made upon 
the ground, that the state had expended that sum iu rela- 
tion to the ceded territory, and not to purchase its title. 
The payment of the Yazoo claim, was also a sacrifice at 
the shrine of public peace, and to quiet the clamour at the 
inconsistent course of the Georgia legislature. Whether 
the agreement to extinguish the Indian title, was not made 
in order to take away all future pretence on the part of 
the state to interfere with an independent Indian nation, is 
worthy of consideration. The guarded wording of that 
provision, demonstrates that the United States were fully 
sensible of their existing obligations towards the Indians; 
and though it was a departure from their uniform policy, it 
was a qualified departure, which might be justified by the 
strong desire felt by the general government to do justice 
to the claims of the aborigines, undisturbed by the inter- 
ference of a state government, which had adopted such 
peculiar notions as to its rights and its obligations. At that 
era, most of the Indian tribes within the undisputed limits 
of the old thirteen states, had lost their independent char- 
acter. Only in that part of the country to which the Uni- 
t^ States, and Georgia, had laid mutual claim, existed in- 
dependent Indian tribes, with whom the general govern- 
ment had formed treaties guaranteeing their possessions, 
and defining their respective rights. In the new states, and 
in the United States territory, these rights were defined by 
compact and agreements. As these southern Indians oc- 
cupied territory claimed by the United States and by Geor- 
gia, in agreeing upon the dividing line, and mutually ceding 
to each, the territory on the respective sides of that line; 
the United States and Georgia also agreed upon the 
manner and the agency by which the Indian titles should 
be extinguished. 

In assenting to that agreement, the general government 



j*«--^ 



104 

affoTtled another proof of its extreme desire to conciliate 
and persuade, instead of coercing. Its title to a great j-or- 
tion of tiie ceded territory was unquestionable ; and to the 
residue, as well as to a large portion within the present liuiits 
of the state oi Georgia, it had a claim supported upon in- 
finitely stronger grounds than a parchment to a royal depu- 
ty. The only consideration therefore, to the United-States 
for the obligations they assumed, was the desire of the ge- 
neral government to preserve the harmony of the country, 
and this especially, was the consideration for their agree- 
ment to extinguish the Indian title. 

This agreement was necessarily qualified by the subsist- 
ing obligations of the United States, and if the fair and 
faithful fulfilment of their Indian treaties, compelled them 
to perpetuate the aboriginal claim to the soil ; the complete 
performance of their agreement with Georgia, was not on- 
ly postponed, but its postponement was expressly provided 
for by the terms of that agreement. 

The treaty-making power presented the means, and the 
only means of performance on the part of the United 
States, and the prohibition of that power to any separate 
state, prevented all interference on the part of (Jeorgia. 

In this manner was finally adjusted all the territoopl 
claims of the United States by cessions on the part of the 
states having claims to the back lands. What would have 
been the result of this business without such compromises, 
it is unnecessary to enquire. The want of some elflcient 
tribunal to determine upon the titles of the conflicting 
claimants, and to enforce the rights of the confederacy, in- 
duces the belief that the law of the strongest would have 
prevailed. It is, however, less difficult to define the rights 
of the respective parties. 

They did not depend, upon the obscure and equivocal 
terms of grants from a monarch on the opposite side of the 
Atlantic. These were only evidences, together with royal 



105 

proclamations, legislative acts, and Indian purchases, of 
what had been the customarj and constitutional jurisdic- 
tion of the local legislatures, and testimony by no means 
conclusive as to limits and boundaries, still less as to so- 
vereignty and property in the soil. Those rested upon 
stronger foundations — upon the right which God had given 
to man to occupy and cultivate the earth; upon the right 
which the colonists had acquired by their labour in re- 
claiming the wilderness, and their valour in defending it 
against their foes, whether civilized or savage. Upon 
these immutable rights they relied, when the British mi- 
nisters acting upon these common law doctrines, which 
gave effect to the royal charters, undertook to make them 
the Helots of the empire. From that moment they com- 
menced their political existence upon a new principle. 
Their charters, excepting where aHogether independent of 
the crown, were thrown aside as from a polluted source ; 
their independence was declared ; and upon their own right 
hands, under a protecting Providence, they depended for 
the vindication of their freedom and property. 

These, together with a certain participation in their lo- 
cal legislation, belonged to them before the revolution. 
Their acquisitions were entire independence ; the right of 
regulating their relations with foreign powers, and Indian 
tribes ; sovereignty over the territory within the boundaries 
described in the treaty of peace with Great Britain, and 
the right of extinguishing the Indian title within those lim- 
its, with the consent of the aborigines. These acquisitions 
were made by the common efforts of the United States, 
and became vested in the people of the country represented 
in congress, according to the articles of confederation. In 
these articles will be found the provisions, by which the 
powers of the general government over those acquisitions 
were defined. Afterwards, these powers were more clearly 



106 

(ieGned, and other powers over certain subjects of local le- 
gislation, granted to congress by the federal constitution. 
In neither of these instruments, from the difficulty of de- 
termining upon a satisfactory method of arranging the mat- 
ter, was any provision inserted concerning territorial acqui- 
sitions; but the rights and claims of all parties were re- 
served for amicable adjustment. They are now settled 
by tacit or express agreement between the general and lo- 
cal governments, and after a fair and impartial examina- 
tion of the charters and other evidences by which the states 
proved their titles to the territories under their jurisdiction 
when provinces. 

In agreeing upon the lines between those territories and 
the back lands to which the Indian title had not been 
extinguished, and of which the ultimate dominion had be- 
longed to the crown until it was ceded to the United States 
in their confederate character, the general government has 
invariably shown itself more desirous of preserving the 
harmony of the country, and of consulting the reasonable 
expectations of the several states, than of maintaining its 
own territorial rights. This disposition was particularly 
manifested in the agreement with Georgia. If the western 
line of that state had been prescribed only with a reference 
to the right of Georgia, as established by her charter, and 
the other evidences of title cited in behalf of the state, 
it would have been run in the following manner, viz : — Be- 
ginning at the south boundary of North Carolina about the 
84th degree of longitude, and thence along the Apalachian 
ridge to the head of the Ocmulgee, or the southern branch 
of the Alatamaha, and down that river to the great turn to 
the east opposite Jacksonville, and ihence in a straight line 
to the head of the St. Mary's river. A line which would 
have run through the present centre of the state, and east 
of the Creek and Cherokee reservations. 



107 

To the territory east of this line, and to that only, Geor- 
gia had an unquestionable title. All the rest was an acqui- 
sition from Great Britain ; and that it was considered so 
even by Georgia herself is manifest from the fact, that in 
the agreement of 1802, the commissioners of that state 
thought it necessary to procure from the United States a 
cession of its title to the territory east of the line actually 
agreed upon. 

No cession on the part of the Union was thought neces- 
sary in any of the territory reserved by-,the other states, ex- 
cepting in the case of the north-west reservation by Con- 
necticut. Here was a reservation of claims beyond the un- 
questioned limits of a state, similar to the reservation of the 
Georgia claim to the territory between her legitimate boun- 
dary and her boundary by compact, and to both the Unit- 
ed States ceded their title ; conveying to Connecticut, the 
property in the soil, and to Georgia the sovereignty and 
property, subject to the Indian title, which was to be ex- 
tinguished by the United States, when it could be done 
consistently with their previous engagements. Until that 
be done, the sovereignty of Georgia over that territory is 
not complete. This is a consequence of her acceptance of 
territory beyond her unquestionable limits, by a cession from 
the United States, and to which she is partially subject in 
common with the other states erected wholly out of the 
territory of the United States. She has indeed this advan- 
tage over them, that the United States are bound to extin- 
guish the Indian title for the benefit of the state; but this 
agreement is subject to so many conditions and limitations, 
that in truth, the claims of Georgia under it, are wholly de- 
pendent upon the decision of the Creeks and Cherokee 
nations. If that consent can be fairly obtained, it certain- 
ly will be. The same liberal feeling on the part of the 
general government, which created the claims of Georgia, 
will no doubt cause them to be satisfied, if it can be done 



108 

consistently with the previous obhgations of the United 
States. 

If not, the land lottery should be postponed to a more 
convenient season. The obligations of congress to their 
constituents and to mankind, are of a most imperious na- 
ture. To their care the national honor and public faith 
are entrusted, and whatever may be the extremity, let it 
always be remembered that Justice should come before 
Generosity. 



AFPZSNDZS:. 



(A) 
A copy of the Proclamation of the Governor of Virginia, granting 

lands on the Ohio, was sent to Oovernor Hamilton^ of Pennsylvania, 

who wrote a letter in reply, of which the following is an extract. 

Dated the 13th of March, 1754. '^ The invasions, &c. having en- 
gaged me to inquire very particularly into the bounds and extent of 
this province westwardly ; I have from thenee the greatest reason to 
believe that the fort and lands, intended to be granted, are really with- 
in the limits of Pennsylvania." 

" March 21st, 1754, governor Dinwiddle writes in reply, ' I am much 
misled by our surveyors, if the forks of Monongialo he within the li- 
mits of your Proprietor's grant ; I have for some time wrote home to 
have the line run, to have the boundaries properly known, that 1 may 
be able to appoint magistrates on the Ohio, (if in this government, ) &c." 

Extract from a Message delivered by Governor Delancy to the Assembly 
of Mew-York, April 24, 1754. 
" I look on the late attempts of the French to be an encroachment 
upon his Majesty's undoubted territory. The lands lying between the 
Seneca's country, the lake Erie, and the river Ohio, formerly belonged 
to a nation of Indians, called the Erics, whom the five nations con- 
quered and extirpated, and thus became masters of their lands ; and 
by the treaty of Utrecht the French acknowledged those Indians call- 
ed the Five Nations, or Cantons, to be subjects of the dominion of 
Great Britain ; and, therefore, the two forts the French have built, are 
evidently an invasion of his Majesty's territories, though, perhaps, not 
so clearly within the limits of any colony in particular : but from the 
idea I have formed to myself of that part of the country, those forts 
seem to be within the Pennsylvania government." 

Extract from a Circular Letter from the Continental Congress to their 
Constituents, unanimously adopted Sept. 13, 1799. 

" Whether the United States have put themselves in a political ca- 
pacity to redeem their bills, is a question which calls for more full dis- 
cussion. 

" Our enemies, as well foreign as domestic, have laboured to raise 
doubts on this head. They argue that the confederation of the siates 
remains yet to be perfected ; that the union may be dissolved, Congress 
be abolished, and each state, resuming its delegated powers, proceed 
in future to hold and exercise all the rights of sovereignty appertaining 
to an mdependent state. In such an event, say they, the continental 
bills of credit, creuted and supported by ihe union, would die with it. 
This position being assumed, they next proceed to iissert this event to 
be probable, and in proof of it, urge our divisions, our parties, our se- 



110 

parate interests, distinct manners, former prejudices, and many ot!ier 
arg-ttments equally plausible and equally fallacious. Examine this 
matter. 

" For every purpose essential to the defence of these states in the 
progfress of the present war, and necessary to the attainment of the 
objects of it, these states now are as fully, leg'allv, and absolutely con- 
federated, as it is possible for them to be. Read the credentials of the 
different deleg-ates who composed the Congress in 1774, 1775, and part 
of 1776. You will find that they establish an union for the express 
purpose of opposing- the oppressions of Britain, and obtaining redress 
of grievances. On the 4th of July, 1776. your representatives in Con- 
gress, perceiving that nothing less than unconditional submission would 
satisfy our enemies, did, in the name of the people of the thirteen 
United Colonies, declare them to be free and independent slates, and 
' for the SUPPORT of that declaration, with a firm reliance on the pro- 
tection of Divine Providence, did mutually pledge to each other their 
MVEs, their fortunes, and their sacrkd honor." Was ever confede- 
ration more formal, more solemn, or explicit.' It has been evpressly 
assented to and ratified by every state in the union, Accordiuglv, for 
(he direct support of this declaration, that is, for the support of the in- 
dependence of these states, armies have been raised, and bills of credit 
emitted, and loans made, to pay and supply tiiem. The redemption, 
therefore, of these bills, the payment of these debts, and the settlement 
of the accounts of the several states for expenditures or services for 
the common benefit, and in this common cause, are among the objects 
of this confederation ; and consequently, while all or any of its objects 
remain unattained. it cannot, so far as it may respect such objects, be 
dissolved, consistent with the laws of God or man. 

" But we are persuaded, and our enemies will find that our union is 
not to end here. They are mistaken when they suppose us kept to- 
gether only by a sense of present danger. It is a fact which they only 
will dispute, that the people of these states were never so cordially 
united as at this day. By having been obliged to mix with each other, 
former prejudices have worn off, and their several manners become 
bl.'inded. A sense of common permanent interest, mutual affection, 
(having been brethren in afHiction.) the ties of consanguinity daily ex- 
tending, constant reciprocity of good offices, similarity in language, ia 
governments, and therefore in manners, the importance, weight and 
splendour of tlie union, all conspire in forming a strong chain of con- 
nexion, whicli must for ever bind us together. The United Provinces 
of the Netlierlands, and the United Cantons of Switzerland, became 
free and independent under circumstances very like ours ; their inde- 
pendence has been long established, an J yet their confederacies con- 
tinue in full vigour. What reason can be assigned why our union 
should be less lasting.' or why should tiie people of these states be sup- 
posed less wise than the inhabitants of those ? You are not uninformed 
that a plan for a perpetual confederation has been prepared, and that 
twelve of the thirteen states have already acceded to it. But enough 
has been said to show that for every purpose of the present war, and 
all things incident to it. there does at present exist a perfect solemn 
confederation, and tlierefore that the states now are and always will be 
in political capacity to redeem their bills, pay their debts, and settle 
their accounts." 

(C) 
'' October 26, 1787, — Instructions to the Commisioners for negotia- 



Ill 

ting a treaty with the Tribes of Indians in the Southern Department, 
for the purpose of establishing Peace between the United States and 
the said tribes. 
'* Gentlemen, 

" Several circumstances rendering it probable that hostilities may 
have commenced, or are on the eve of commencing, between the state 
of North Carolina and the Cherokee nation of Indians, and between 
the state of Georgia and the Creek nation of Indians, you are to use 
every endeavour to restore peace and harmony between the said states 
and the said nations, on terms of justice and humanity. 

" The great source of contention between the said states and the In- 
dian tribes, being boundaries, you will carefully inquire into and ascer- 
tain the boundaries claimed by the respective states. And although 
Congress are of opinion that they might constitutionally fix the bounds 
between any state and an independent tribe of Indians, yet unwilling 
to have a ditference subsist between the general goverimient and that 
of the individual states, they wish you so to conduct the matter, that the 
states may not conceive their legislative rights in any manner infringed ; 
taking care at the same time that whatever bounds are agreed upon, 
they may be described in such terms as shall not be liable to miscon- 
struction and misrepresentation, but may be made clear to the concep- 
tions of the Indians as well as whites. 

" The present treaty having for its principal object the restoration of 
peace, no cession of land is to be demanded of ilie Indian tribes." 

(D) 
Instructions from the general assembly of Maryland to their Delegates 
in Congress, directing them not to ratify the articles of Confederation, 
Dec. 15, 1778. 

" We think it our duty to instruct on the subject of the confedera- 
tion, a subject in which, unfortunately, a supposed difference of inte- 
rest has produced an almost equal division of sentiments among tiie 
several states composing the union. We say a supposed difference of 
interests, for if local attachments and prejudices, and the avarice and 
ambition of individuals, would give way to the dictates of a sound po- 
licy, founded on the principles of justice (and no otlier policy but what 
is founded on those immutable principles deserves to be called sound) 
we flatter ourselves, this apparent diversity of interests would soon 
vanish, and all the states would confederate on terms mutually advan- 
tageous to all ; for they would then perceive that no other confedera- 
tion than one so formed can be lasting Although the pressure of im- 
mediate calamities, the dread of their continuance from the appearance 
of disunion, and some other peculiar circumstances, may have induced 
some states to accede to the present confederation, contrary to their 
own interests and judgments, it requires no great share of foresight to 
predict, that when those causes cease to operate, the states which have 
thus acceded to the confederation will consider it as no longer binding, 
and will eagerly embrace the first occasion of asserting their just rights, 
and securing their independence. Is it possible that those states who 
are ambitiously grasping at territories, to which in our judgment they 
have not the least shadow of exclusive right, will use with greater mo- 
deration the increase of wealth and power derived from those territo- 
ries, when acquired, than what they have displayed in their endeavours 
to acquire them ? We think not. We are convinced the same spirit 
which prompted them to insist on a claim so exlravagaiit, so repugnant 
to every principle of justice, so incompatible with the general welfare 



112 

of all the states, will urg-e them on to add oppression to injustice. If 
they shotild not be incited by a superiority of wealth and streng-th to 
oppress by open force their less wealthy and less powerful neighbours ; 
yet depopulation, and consequently the impoverishment of those states 
will necessarily follow, which, by an unfair construction of the confede- 
ration, mav be stripped of a common interest, and the common benefits 
derivable from the western country. Suppose, for instance, Virginia 
indisputably possessed of the extensive and fertile country to which 
she has set up a claim, what would be the probable consequence to 
Maryland of such an undisturbed and undisputed possession ? They 
cannot escape the least discerning-. 

" Virginia, by selling on the most reasonable terms a small propor- 
tion of the lands in question, would draw into her treasury vast sums of 
money ; and in proportion to the sums arising from such sales, would 
be enabled to lessen her taxes. Lands comparatively cheap, and taxes 
comparatively low, with the lands and taxes of an adjacent state, would 
quickly drain the state thus disadvantageously circun.stanced of its 
most useful inhabitants ; its wealth and its consequence in the scale of 
the confederated states would sink of course. A claim so injurious t» 
more than one hi;lf, if not to the wliole of the United States, ouglit to 
be supported by the clearest evidence of the right. Yet what eviden- 
ces of that right have been produced? What arguments alleged in 
support either of the evidence or the right ? None that we have heard 
of deserving a serious refutation. 

" It has been said,tliat some of the delegates of a neighbouring state 
have declared their opinion of tlie impracticability of governing the 
extensive dominion claimed by that state. Hence also the necessity 
was admitted of dividing its territory, and erecting a new state under 
the auspices and direction of the elder, from whom no doubt it would 
receive its form of government, to whom it would be bound by some 
alliance or confederacy, and by whose councils it would be influenced. 
I'-uch a measure, if ever attempted, would certainly be opposed by the 
oi ■ r states as inconsistent with the letter and spirit of the proposed 
confederation. Sliould it lake place by establishing a sub-confederacy, 
imperium in imperio, the state possessed of this extensive dominion 
must then eitlier submit to all the inconveniences of an overgrown and 
unwieldy government, or suffer the authority of Congress to interpose 
at a future time, and to lop off a part of its territory, to be erected into 
a new and free state, and admitted into the confederation on such con- 
ditions as sliall be settled by nine states. If it is necessary for the hap- 
piness and tranquillity of a state overgrown, that Congress should here- 
after interfere and divide its territory, why is the claim to that territory 
now made, and so pertinaciously insisted on ? We can suggest to our- 
selves but two motives ; eitlier the declaration of relinquishing at some 
future period a proportion of the country now contended for, was made 
to lull suspicion asleep, and to cover the designs of a secret ambition, 
or, if tiie tiiought was seriously entertained, tiie lands are now claimed 
to reap an irn;iiodiate profit from the sale. We are convinced, policy 
and justice require, tliat a country unsettled at the commencement of 
tins war, claimed by the British crown, and ceded to it by the treaty of 
I'aris, ii wrested from the common enemy by the blood and treasure of 
llie tlurteen states, should be considered as a common property, subject 
to be parcelled out by Congress into free, convenient, and independent 
|!Overamenls, in such manner and at such times as the wisdom of (hat 
assi iiibij shali iiertaiter direct. 



113 

" Thus convinced, we shouM betray the trust reposed in us by cm 
constituents, were we to authorize yon to ratify on their behalf the con- 
federation, unless it be farther explained : we have coolly and dispas- 
sionately considered the su ject; we have weig'hed probable inconve- 
niences and hardships against the sacrifice of just and essential rights; 
and do instruct you not to agree to the confederation, unless an article 
or articles be added thereto in conformity witli our declaration. Sboul^ 
we succeed in obtaining such article or articles, then you are hereby 
fully empowered to accede to the confederation." 

"(E)" 
Report of a Committee to which was referred certain Papers relative 
to the Indian affairs, and a motion of the Delegates from Georgia, 
Avgust 3d, 1 787. 

" That the said papers referred to them state, first, that certain en- 
croachments are made on the lands of the Creek and Cherokee nations, 
by the people of Georgia and North Carolina. Secondly, that there is 
no regular trade between our citizens and the Indian nations in that 
department, by which those nations can obtain a certain supply of 
goods, arms, kc. ; that these nations wish to have connexions with the 
United States only: that their necessities, however, are such, that if 
tliey cannot be regularly supplied by our traders, they must listen to the 
repeated invitations made ihem to turn their trade to, and to seek sup- 
plies from another quarter. That the said motion, among other things, 
states, that there is reason to apprehend the Creek Indians are medita- 
ting a serious blow against the inhabitants of Georgia ; and proposes, 
tliat it be recommended to that state to use every possible means to 
preserve peace between her citizens and those Indians ; and that Con- 
gress resolve, (hey are bound to draw forth a sufficient number of the 
forces of the union to punish any nation or tribe of Indians that shall 
attempt to make war on either of the United States, by attacking or 
killing any of their citizens. On these subjects the committee observe, 
that the encroachments complained of, appear to demand the serious 
attention of Congress, as well because they may be unjustifiable, as on 
account of their tendency to produce all the evils of a general Indian 
war on the frontiers. The committee are convinced that a strict in- 
quiry ii to the causes and circumstances of the hostilities often commit- 
ted in and near tiie frontier settlements, ought to be made ; that it is 
become necessary for government to be explicit and decisive ; and to 
see that impartial justice is done between the parties ; that justice and 
policy, as well as the true interestsof our citizens, evince the propriety 
of promoting peace and a free trade between them and the Indians. — 
Various circumstances show, that the Indians in general, within the 
United States, want only to enjoy their lands without interruption, and 
to have their necessities regularly supplied by our traders, and could 
these objects be effected, no other measures would, probably, be neces- 
sary for securing peace, and a profitable trade with those Indians. The 
committee are not informed what measures have been adopted by the 
superintendents to promote a regular trade between our people and 
the Indian nations, or for preventing intrusions upon the lands of the 
latter, several tribes complain that their land is taken from them, and 
that they suffer very much for want of such trade. As information re- 
lative to these subjects must, principally, come from the frontier set- 
tlers, the Indians and traders residing among them, the commi'tee are 
sensible 4hat facts eannet always be well ascertained : bat ia the pre 

1.5 



114 

sent case tliere is sufficient eviflence to show, that those tribes do not 
comoliin 3l!o«-<;ther wit'iout cause. An avaricious disposition in some 
of our peouh^ to acquire lary^e tracts of Innd, and often by unfair means 
apie^rs U} oe the principal source of difficulties with the Indians. — 
There can be no doubt that settlements are made by our people on the 
lands sfTored to the Clierok ses by the late treaty between them and the 
United States ; and also on lands near the Oconee, claimed by the 
Creeks ; various pretences seem to be set up by the white people for 
making- those settlements, which the Indians, tenacious of their rights, 
appear to be detennined to oppose. The respective titles cannot rea- 
dily be investig-ated ; but there is anottier circumstance far more em- 
barrassing:, and tiiat is, the clause in the confederation relative to ma- 
nag-ing- all affairs with the Indians, &c-, is differently construed by 
Conf^ress and the two states within whose limits the said tribes and dis- 
}>uted lands are. The construction contended for by those states, if, 
right, appears to tiie committee to leave the federal powers, in this 
case, a mere military ; and to make it totally uncertain on what princi- 
ple Congress is to interfere between them and the said tribes. The 
states not only contend for this construction, but have actually pursued 
measures in conformity to it. North Carolina has undertaken to as- 
sign land to the Cherokees, and Georgia has proceeded to treat with 
the Creeks concerning peace, lands, and the objects usually the prin- 
pal ones in almost every treaty with the Indians. This construction 
appears to the committee not only to be productive of confusion, dis- 
putes, embarrassments in managing affairs with the independent tribes 
within the limits of the states, but by no means the true one. The 
clause referred to is — " Congress shall have the sole and exclusive 
right and power of regulating tl," trade aud managing all affairs with 
tiie Indians, not members of any «f the states; provided that the legis-- 
lative right of any state, within its own limits, be not infringed or vio- 
lated." In forming this clause, the parties to the federal compact, must 
have had some definite objects in view; tlie objects that come into 
view, principally, informing treaties, or managing affairs with the In- 
dians, had been long understood, and pretty well ascertained in this 
country. Tlie committee conceive that it has long t^een the opinion of 
the country, supported by justice and humanity, that the Indians have 
just claims to all lands occupied by, and not fairly purchased from them ; 
and that in managing affairs with them, the principal objects have beea 
tiiose of making war and peace, purchasing certain tracts of their 
lands, fixing the boundaries between them and our people, and pre- 
venting the latter settling on lands left in possession of the former. The 
powers necessary to these objects appear to the committee to be indi- 
visible, and that the parties to the confedei alien must have intended to 
give them entire to the union, or to have given them entire to the state. 
These powers, before the revolution, were possessed by the king, and 
exercised by him, nor did they interfere with the legislative right of the 
colony within its limits; this distinction whicli was then, and may be 
now taken, may perhaps serve to explain the proviso, part of tlie reci- 
ted clause. The laws of the state can have no effect upon a tribe of 
Indians, or their lands, within the limits of the state, so long as that 
tribe is iuJependeut, and not a member of the stale, yet the laws of 
the state may be executed upon debtors, criminals, aud other proper 
objects of those laws, in all parts of it; an tlierefore the union may 
make stipulatums wiih an such tribe, secure it in the eujoyment of 
all or part of ils lands, without infringing upon the legislative right in 



115 

question. It cannot be supposed tlie state has the powers mentioned, 
without making the recited clause useless, and without absurdity in 
theory as well as in practice ; for the Indian tribes are justly considered 
the common friends or enemies of the United States, and no particu- 
lar state can have an exclusive interest in the management of affairs 
with any of the tribes, except in some uncommon cases. The com- 
mittee find it difficult to reconcile the said construction of the recited 
clause, made by the two states, and their proceedings before mention- 
ed, especially those of Georgia, with what they conceive to be the in- 
tentions of those who made the said motion ; for the committee pre- 
sume that the delegates of Georgia do not mean that Congress is bound 
to send their forces to punish such natioiis as the state shall name, to 
act in aid of the state authority ; to send her forces and reeal them as 
she shall see fit, to make war or peace ; such an idea cannot be consis- 
tent with the dignity of the union, and" the principles of the federal 
compact. But the committee conceive that it is the opinion of the ho- 
nourable movers, and also the general opinion, that all wars and hostile 
measures against the ('reeks, or any other independeni tribe of Indians, 
ought to be conducted under tlie autliority of the union, at least where 
tlie forces of the union are emnloyed, that the power to conduct a war 
clearly implies the power to examine into the justice of the war, to 
make peace, and adjust the terms of it ; and that, therefore, the terras 
or words of the said motion, if it be adopted by Congress at all, must 
be varied accordingly. But whatever may be the true construction of 
the recited clause, the committee are persuaded that it must be imprac- 
ticable to manage affairs with the Indians within the limits of the two 
states, so long as they adhere to the opinions and measures they seem 
to have adopted. The difficulties, in fact, exist ; the states think it is 
their duty to counteract the powers of Congress, when carried, in con- 
ducting affairs with those Indians, beyond those narrow limits which 
the said states prescribe ; the question therefore is, how shall these dif- 
ficulties be avoided in a manner most agreeable to both Congress and 
the states? The committee discern but two ways practicable ; the one 
is for the two states to make liberal cessions of territory to the United 
States ; the other is, for those states to accede to Congress's managiug^, 
exclusively, all affairs with the Cherokees, Creeks, and other indepen- 
dent tribes within the limits of the said states, so that t ongress, in 
either case, may have the acknowledged power of regulating trade, 
and making treaties with those tribes, and of preventing on tiieir lands, 
the intrusions of the white people. That of making liberal cessions of 
territory, all things considered, appears to be the most eligible, and 
likely to meet the approbation of the two states ; several circumstaucees 
induce the committee to think this the best mode ; they presume the 
two states will act on liberal principles, and adopt measures founded in 
sound policy, and calculated to promote the national interest, they will 
consider that the lands proposed to be ceded, were arrested from Great 
Britain by tlie conunon exertions of tlie confederacy and that other 
states Ijave ceded lands to the union in a similar situation, which are 
now Selling for the common benefit of all ilie states. The committee 
conceive that several otlier considerations cannt-t escape the observa- 
tion of the two states, which may be urged in favour of the cessions; 
among other things of importance to those states, as well as to the 
union, must be the advantages arising from putting the management of 
Indian affairs into the hands of Congress alone, and preventing irregular 
and dispersed settlements on the lands proposed to be ceded. The- 



116 

tummittee believe that the two states, upon re-cousideriD<? the subject^ 
will be disposed to follow the liberal example of the other states in a 
similar situation, and, especially, as it will prob.ibly appear to the two 
states, that by making' the proposed cessions, the difficulties they now 
experience will be removed, that is, the controversies respecting 
Indian affairs, and those dispersed settlements which tend to render the 
gf^vernmenls weak and feeble, and to produce expensive and calami- 
tous wars A?ith the Indians. The committee further observe, on the 
subjects referred to them, that it is probable the Indians in the southern 
department will turn their trade to Florida, Unless rejOfularly supplied by 
our citizens and traders , and that the attention of the superintendent 
in thfit department oupjht to be seasonably directed to the encourap^e- 
ment and promotion of r. reg'ular trade between our citizens and those 
Indians. That the dispute between Georgia and the Creeks is become 
so serious, that it is probable a war will etisue, and the interference of 
the union become necessarv, unless early measures be adopted for set- 
tling the controversy re' pecting the said Oconee lands ; the Committee 
think, therefore, that it should be recommended to that state, to use all 
possible means for preserving peace with the Creeks, and that they and 
the Cherokees be informed, that Congress are pursuing measure's to 
adjust all disputes about their innds. That Georgia be informed that 
Congress consider tiiB union bound by the federal compact to protect 
every part of the nation, as well against the unjust and unprovoked 
attacks of the independent fndians within the United States, as against 
foreign powers; that Congress, however, can never employ the forces 
of the union in any cause, the justice of which they are not fully 
informed and convinced, nor constitutionally inferfere in behalf of the 
state against any such independent tribe, but on the principle that Con- 
gress shall have the sole direction of the war, and the settling of all the 
terms of peace with such Indian tribe. Whereupon the committee 
suggest the following resolutions : Resolved, That it bo, and it hereby 
is earnestly recommended to the states of North-Carolina and Georgia^ 
to make liberal cessions of territory to the United States, for their 
common benefit, to be governed and disposed of in tlie same manner as 
the territory of the United States, north-west of the river Olio, is, and 
shall be governed and disposed of. Resolved, That it be recommended 
to the state of Georgia, to use all possible means to preserve peace and 
friendship between the citizens of that state and the upper and lower 
Creek Indians, consistent with the principles of the confederatioQ. 
Resolved, That Congress esteem it their duty to consider the causes 
and circumstances of any dispute or hostile proceedings between any 
state, or the citizens thereof, and any Indian tribe or tribe of Indians 
within the limits ol the United States, not members of anv of the states, 
and that Congress is bound to employ the forces of the Union to punish 
any such tribe or tribes which sliall make unjust and unprovoked 
attacks upon any part of the United States. Resolved, That the super* 
intendent of Indian affairs in the southern department be directed, 
without delay, to inform the Creeks and Cherokees, that Congress are 
pursuing measures for settling all disputes about the lands claimed by 
them and the white people ; that he be directed to inform the Indians in 
his department, that Congress is always disposed to hear their com* 
plaints, which must be made through tlie superintendent, to redress 
their grievances, and to preserve peace and lasting friendship with 
them ; and that he be directed to report the measures that have beeU 
adopted for supplying those Indians with merchandise. 



I 



